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AMERICAN 
MARRIAGE  LAWS 

IN  THEIR  SOCIAL  ASPECTS 
A  DIGEST 


By 

FRED  S.  HALL  and  ELISABETH  W.  BROOKE 


NEW  YORK 

RUSSELL  SAGE  FOUNDATION 
1919 


Copyright,  1919,  by 
The  Russell  Sage  Foundation 


WM  •  F.  FELL  CO  •  PRINTERS 
PHILADELPHIA 


PREFACE 

SOMEONE  has  remarked  that  the  whole  of  social  reform  is 
implied  in  social  case  work — if  it  be  thorough  enough.  This 
is  an  overstatement ;  social  reform  has  many  approaches,  and 
we  could  ill  afford  to  dispense  with  a  single  one  of  them.  It  does 
happen,  however,  that  the  plan  of  study  to  which  the  present  Digest 
is  merely  preliminary  grew  out  of  social  case  work  in  one  of  the  large 
family  agencies  of  New  York,  and  that  this  brief  study  illustrates, 
in  a  fashion,  the  relation  between  the  social  worker's  attempt  to 
find  a  way  out  for  a  few  people  in  grievous  trouble  and  human  issues 
of  wider  significance. 

I  have  served  for  several  years  on  the  committee  of  a  society  for 
family  social  work  to  which  have  been  referred  its  especially  puzzling 
problems  of  individual  welfare.  In  about  three-fifths  of  all  the  cases 
so  referred,  the  committee  found  that  the  core  of  the  difficulty  cen- 
tered around  marital  maladjustments.  (Their  proportion  in  the 
whole  work  of  the  society,  it  should  be  added,  would  not  be  nearly 
so  large.)  These  troubles  of  the  Smiths,  the  Browns,  and  the  Robin- 
sons brought  more  forcibly  to  our  attention  than  ever  before  certain 
ancient  evils  and  certain  proposed  remedies.  As  a  part  of  the 
general  public,  we  had  already  noted  the  alarming  increase  in  the 
number  of  divorces,  but  we  had  never  fully  realized  before  the  close 
relation  between  divorce  and  our  ill-devised,  variously-administered 
marriage  laws.  We  began  to  wonder  why  so  much  attention  had 
been  given  to  the  defects  of  our  divorce  laws  and  so  little  to  those 
regulating  marriage.  Of  course,  law  is  only  a  small  part  of  the 
problem  as  compared  with  public  education  and  early  training,  yet 
it  shapes  our  social  ideals,  in  part  at  least,  besides  having  much  to 
do  with  the  practical  adjustments  of  daily  living. 

To  those  who  champion  one  wholesale  remedy  for  marital  un- 
happiness,  the  plans  growing  out  of  this  committee  work — plans 
for  a  series  of  brief  studies  to  be  made  by  the  Russell  Sage  Founda- 
tion— ^will  seem  futile.  To  those,  on  the  other  hand,  who  believe  in 
beginning  where  we  are  and  in  securing  each  advance  step  as  we 

3 


v\J  ^^^  x^'".  :  ^^^^     :  ^^^  ,   ^'     preface 

take  it,  statements  that  present  the  facts  about  the  present  laws, 
about  their  administration,  and  about  the  effect  of  both  as  observed 
in  the  Hves  of  real  people,  will  serve  a  useful  purpose. 

The  first  fruits  of  our  endeavors  will  be  found  in  a  small  book 
appearing  simultaneously  with  this  Digest — a  study  by  Miss  Colcord 
of  Broken  Homes  and  the  social  treatment  of  family  desertion .^ 

Mr.  Hall  and  Miss  Brooke  have  compiled  the  present  summary  of 
our  marriage  laws  and  of  certain  proposals  made  by  others  for  their 
reform  as  preliminary  merely  to  an  inquiry  into  the  way  in  which  the 
laws  on  our  statute  books  are  actually  administered.  Their  ad- 
ministration has  even  more  to  do  with  family  welfare,  of  course, 
than  have  the  laws  themselves.  This  first  part  of  the  larger  study 
is  put  out  promptly,  however,  because  it  will  be  of  immediate  ser- 
vice to  the  many  who  are  now  at  last  becoming  interested  in  marriage 
law  reform. 

Leagues  of  women  voters  are  interested  in  bringing  reason  and 
essential  justice  into  this  much  neglected  field;  so  are  the  officers 
of  domestic  relations  courts,  the  more  socially  minded  members  of 
the  bar,  the  social  agencies  of  the  country,  and  the  churches.  All 
will  be  eager,  therefore,  to  measure,  with  the  aid  of  these  pages,  the 
width  of  the  gap  between  the  proposals  for  reform  made  by  leading 
authorities  and  the  actual  laws  of  the  various  states  as  here  sum- 
marized. And  no  one  can  note,  in  each  state,  the  distance  thus 
shown  to  exist  between  the  possible  and  the  actual,  I  believe,  with- 
out becoming  more  interested  in  the  subject. 

Then,  if  readers  will  accept  a  further  suggestion,  their  examina- 
tion of  the  provisions  in  their  own  state  could  be  followed  by  some 
inquiry  into  the  way  in  which  the  statutes  regulating  marriage  are 
enforced  there.  What,  in  detail,  is  the  interpretation  put  upon  the 
marriage  laws  in  daily  practice?  How  are  licenses  issued?  How 
carefully  is  the  intention  of  the  law  made  clear  to  unsophisticated 
people?  How  are  evasions  punished?  The  authors  of  these  pages 
would  welcome  any  light  upon  these  topics,  which  will  constitute 

their  next  subject  of  study. 

Mary  E.  Richmond. 

New  York,  May,  1919. 

1  Colcord,  Joanna  C:  Broken  Homes,  a  Study  of  Family  Desertion  and  Its 
Social  Treatment.     New  York,  Russell  Sage  Foundation,  1919. 


TABLE  OF  CONTENTS 

PART  I 
SOME  PROPOSALS  FOR  MARRIAGE  LAW  REFORM 


L  Common  Law  Marriages  X4 

IL  The  Marriageable  Age  17 

in.  Notice  of  Intention  to  Mapry  18 

IV.  The  Marriage  Celebrant  19 

V.  State  Registration  of  Marriage  21 

VI.  Inter-State  Relations  21 

VII.  A  Summary  of  the  Commissioners'  Acts  22 


PART  II 

THE  MARRIAGE  LAWS  BY  TOPICS 

I.  Introduction  29 

II.  Summary  of  Laws  by  Topics  31 

L  Common  law  marriages  31 

2.  Marriageable  age  32 

3.  The  marriage  license  34 

a.  Requirement  34 

b.  Where  the  License  is  Obtained  35 

c.  Advance  Notice,  Objections,  etc.  36 

d.  Parental  Consent  37 

e.  Form  of  the  License  38 

f.  Record  of  the  License  39 

g.  Life  of  the  License  39 
h.  Other  Requirements  and  Prohibitions  39 

4.  Solemnization  41 

a.  The  Celebrant  41 

b.  Presentation  of  the  License  42 

c.  Form  of  Ceremony  ^      ^  43 

d.  Other  Requirements  and  Prohibitions  43 

5 


TABLE   OF   CONTENTS 


II.  Summary  of  Laws  by  Topics  {continued) 

5.  The  marriage  record 

a.  Certificates  and  Their  Distribution 

b.  Local  Record 

c.  State  Record 

6.  Inter-state  relations 

7.  Certain  other  prohibitions 

8.  Other  related  subjects 


PAGB 

44 

44 
45 
45 

46 
47 
47 


PART  III 
THE  MARRIAGE  LAWS  BY  STATES 


Alabama 

51 

Nebraska 

91 

Arizona 

53 

Nevada 

93 

Arkansas 

54 

New  Hampshire 

94 

California 

56 

New  Jersey 

96 

Colorado 

57 

New  Mexico 

98 

Connecticut 

59 

New  York 

99 

Delaware 

61 

North  Carolina 

101 

District  of  Columbia 

63 

North  Dakota 

103 

Florida 

64 

Ohio 

105 

Georgia 

65 

Oklahoma 

106 

Idaho 

66 

Oregon 

108 

Illinois 

68 

Pennsylvania 

110 

Indiana 

69 

Rhode  Island 

112 

Iowa 

71 

South  Carolina 

114 

Kansas 

72 

South  Dakota 

115 

Kentucky 

74 

Tennessee 

116 

Louisiana 

75 

Texas 

118 

Maine 

77 

Utah 

119 

Maryland 

79 

Vermont 

120 

Massachusetts 

80 

Virginia 

122 

Michigan 

83 

Washington 

124 

Minnesota 

85 

West  Virginia 

126 

Mississippi 

87 

Wisconsin 

127 

Missouri 

88 

Wyoming 

131 

Montana 

90 

PART  I 
SOME  PROPOSALS  FOR  MARRIAGE  LAW  REFORM 


I 

SOME  PROPOSALS  FOR  MARRIAGE  LAW  REFORM 

IN  PLANNING  this  brief  study,  its  authors  originally  proposed 
to  print  their  digest  of  existing  marriage  laws — or  of  things  as 
they  are — at  the  beginning.  But  they  soon  realized  that  most 
people  would  be  more  interested  in  things  as  they  ought  to  be,  and 
would  prefer  to  examine  first  of  all  the  proposals  for  reform  of  stu- 
dents who  had  given  this  subject  of  our  American  marriage  laws 
detailed  attention.  Most  readers  will  wish  to  know,  of  course,  how 
the  laws  of  their  several  states  compare  with  those  of  other  states, 
but  they  will  be  especially  eager  to  discover  the  extent  to  which 
their  state  laws  fall  below  the  standards  advocated  by  competent 
authorities.  To  facilitate  this  comparison  a  summary  of  the  recom- 
mendations of  certain  of  these  authorities  is  presented  in  the  foUow- 
lowing  pages. ^ 

The  first  reaction  of  those  who  begin  to  think  about  that  tangle 
of  conflicting  and  obscure  enactments  which  now  make  up  the 
marriage  laws  of  this  country  is  to  decide  that  there  should  be  one 
law  for  the  whole  United  States,  preferably  a  federal  law,  or  failing 
that  an  identical  law  for  every  state.  The  motives,  most  of  them 
unconscious,  behind  this  desire  for  uniformity  are  somewhat  mixed. 
Those  who  favor  a  federal  law  do  so  chiefly  because  they  believe 
that  only  through  such  a  means  can  at  all  satisfactory  standards  be 
everywhere  applied ;  at  least  that  their  application  by  the  route  of 
state  legislation  would  be  a  slow  and  wearisome  process.  A  federal 
law  is  the  royal  road  to  their  goal.  Those  on  the  other  hand  who 
think  in  terms  of  uniform  state  laws  are  controlled  by  a  feeling  that 
uniformity  for  its  own  sake,  in  this  matter,  is  a  great  social  gain. 

All  critics  agree  that  we  need  far  greater  uniformity  than  we  now 
have,  but  many  doubt  whether  a  uniformly  good  result  would  be 

1  Miss  Richmond  has  explained  in  the  Preface  that  this  is  only  a  preliminary 
study,  to  be  followed  by  other  books  or  pamphlets,  describing  the  ways  in  which 
existing  laws  are  administered,  and  the  effects  of  their  administration  as  traced  in 
the  case  records  of  family  social  agencies,  probation  departments,  and  so  on. 

9 


AMERICAN  MARRIAGE  LAWS 

obtained  if  a  single  law  were  imposed  on  all  states  by  vote  of  Con- 
gress, without  the  adaptations  that  make  enforcement  easier  in  the 
different  sections  of  the  country,  or  whether  this  could  be  achieved 
even  if  such  a  law  were  enacted  everywhere  by  state  legislatures. 
The  history  behind  the  obligatory  religious  ceremony  in  Maryland, 
which  is  obligatory  nowhere  else,  the  ethnological  differences  be- 
tween the  Mexican  girls  of  Texas,  the  Italians  of  our  large  cities, 
and  the  natives  of  New  England,  as  these  differences  may  affect  the 
fixing  of  the  "marriageable  age";  the  town  unit  for  local  marriage 
license  administration  in  New  England  in  contrast  to  the  county 
unit  usually  found  elsewhere — these  and  many  other  factors  have 
to  be  reckoned  with.  In  the  words  of  ex-Justice  Charles  Evans 
Hughes,  there  has  to  be  a  "statesmanlike  appreciation  of  past,  present 
and  future"  in  pushing  for  legislative  reforms,  especially  for  reforms 
that  touch  social  institutions  older  than  recorded  history  itself. 
"If  there  were  centered  in  Washington,"  continues  Mr.  Hughes, 
"a  single  source  of  authority  from  which  proceeded  all  the  govern- 
mental forces  of  the  country — created  and  subject  to  change  at  its 
will — upon  whose  permission  all  legislative  and  administrative  ac- 
tion depended  throughout  the  length  and  breadth  of  the  land,  I 
think  we  should  swiftly  demand  and  set  up  a  different  system.  If 
we  did  not  have  states  we  should  speedily  have  to  create  them. 
We  now  have  them,  with  the  advantages  of  historic  background, 
and  in  meeting  the  serious  questions  of  local  administration  we  at 
least  have  the  advantage  of  ineradicable  sentiment  and  cherished 
traditions."^ 

A  similar  conviction  had  already  been  expressed  by  Woodrow 
Wilson,  who  says  in  his  Constitutional  Government:  "The  remedy 
for  ill  considered  legislation  by  the  states,  the  remedy  alike  for 
neglect  and  mistake  on  the  part  of  their  several  governments,  lies 
not  outside  the  states,  but  within  them.  The  mistakes  which  they 
themselves  correct  will  sink  deeper  into  the  consciousness  of  their 
people  than  the  mistakes  which  Congress  may  rush  in  to  correct 
for  them,  thrusting  upon  them  what  they  have  not  learned  to  desire. 
They  will  either  themselves  learn  their  mistakes,  by  such  intimate 
and  domestic  processes  as  will  penetrate  very  deep  and  abide  with 

1  Hughes,  Charles  Evans:  Presidential  Address  before  the  Bar  Association  of 
New  York  State,  Jan.  14,  1916. 

10 


PROPOSED  REFORMS  SUMMARIZED 

them  in  convincing  force,  or  else  they  will  prove  that  what  might 
have  been  a  mistake  for  other  states  or  regions  of  the  country  was 
no  mistake  for  them,  and  the  country  will  have  been  saved  its 
wholesome  variety."^ 

The  arguments  of  both  men  are  directed  primarily  against  an 
unwonted  extension  of  federal  action.  As  to  state  action  it  is  safe 
to  assume  that  ordinarily  no  greater  uniformity  will  be  obtained 
than  is  adapted  to  local  conditions.  Legislatures  will  attend  to 
that.  Nevertheless  those  who  offer  recommendations  for  uniform 
state  laws  will  do  well  to  bear  in  mind  that  there  are  limits  beyond 
which  many  feel  that  uniformity  is  not  necessary  and  may  be 
unwise.  Certain  recognized  essentials  should  of  course  be  uniform ; 
but  it  is  also  very  desirable,  in  a  field  left  so  largely  heretofore  to 
haphazard  development,  that  opportunity  be  given  for  intelligent 
experimentation. 

In  so  far  as  the  desire  for  uniformity  springs  from  more  than  an 
unthinking  worship  of  it  as  a  fetish,  it  is  based  on  a  fear  that  without 
uniform  laws  on  marriage  those  who  live  in  states  with  high  stan- 
dards will  suffer  through  the  ease  with  which  their  laws  may  be 
nullified  so  long  as  trips  for  the  purpose  of  marriage  may  be  made  to 
a  neighboring  state  where  standards  are  lower.  There  is  a  quite 
general  feeling  that  states  are  helpless  to  protect  themselves  from 
such  attacks  upon  their  standards.  For  those  who  share  this 
feeling  special  attention  is  called  to  page  47,  on  which  are  listed  the 
nine  states  which  have  apparently  found  a  way,  through  special 
laws,  to  avoid  this  danger.  These  laws,  more  fully  discussed  at  the 
point  referred  to,  provide  in  effect  that  residents  of  a  state  cannot 
evade  its  laws  if  they  go  elsewhere  to  be  married  and  then  return 
to  their  home  state.  How  thoroughly  such  provisions  have  ac- 
complished their  purpose  can  of  course  be  shown  only  through  a 
careful  study  of  local  administration.  Even  if  they  were  completely 
successful  there  would  still  be  the  possibility  that  a  high  standard 
state  might  suffer  from  the  lower  standards  of  its  neighbors,^  but 


^  Wilson,  Woodrow:  Constitutional  Government  in  the  United  States,  p.  187. 
The  Columbia  University  Press,  1908. 

2  For  a  discussion  of  this  possibility — the  coming  into  a  state  to  live  of  bona 
fide  residents  of  a  lower  standard  state — see  page  21,  following,  and  page  46  in 
Part  II,  The  Marriage  Laws  by  Topics. 

II 


AMERICAN  MARRIAGE  LAWS 

the  champions  of  a  reasonable  diversity  contend  that  this  danger  is 
sHght  in  comparison  with  the  gains  which  come  from  the  fact  that 
through  diversity  in  our  laws  the  value  or  worthlessness  of  new  pro- 
visions in  the  more  progressive  states  is  being  demonstrated,  while 
people  in  the  other  states  wait  and  watch.  Uniformity  demands 
that  all  shall  wait  until  all  can  agree  on  the  next  forward  step. 
Those  who  see  value  in  diversity  are  willing  enough  to  agree  that  the 
line  of  progress  is  toward  uniformity,  and  that  this  may  possibly 
lead  to  a  federal  law  later  on ;  but  they  contend  that  more  rapid 
progress  can  be  made  at  present  by  means  of  state  action,  and  that 
each  step  thus  taken  can  be  tested  before  it  is  generally  adopted. 

The  proposals  of  the  moderate  progressives,  looking  to  a  rational- 
ization of  our  marriage  laws,  are  here  given  under  the  following 
seven  heads: 

1.  Common  law  marriages 

2.  The  marriageable  age 

3.  Notice  of  intention  to  marry 

4.  The  marriage  celebrant 

5.  State  registration  of  marriages 

6.  Inter-state  relations 

7.  Summary  of  the  Commissioners'  Acts. 

The  four  authorities  selected  for  this  summary  are  the  Commis- 
sioners on  Uniform  State  Laws  (referred  to  throughout  as  "the 
Commissioners");  George  Elliott  Howard,  author  of  A  History  of 
Matrimonial  Institutions;  Willystine  Goodsell,  author  of  The 
Family  as  a  Social  and  Educational  Institution;  and  Frank  Gay- 
lord  Cook,  whose  series  of  articles,  published  in  1888,  are  still  quoted 
as  among  the  most  original  contributions  to  the  subject  of  marriage 
law  reform.^ 

The  hotly  debated  proposals  for  marriage  restriction  in  the  inter- 
est of  eugenics  are  not  emphasized  by  any  of  these  writers,  nor  are 
they  included  in  this  summary  of  recommendations.  Their  enact- 
ment in  a  few  states^  is  too  recent  to  justify  inclusion  in  a  list  of 

1  These  articles  appeared  in  Vol.  61  of  the  Atlantic  Monthly  and  are  entitled 
respectively  "The  Marriage  Celebration  in  Europe,"  p.  245,  "The  Marriage 
Celebration  in  the  Colonies,"  p.  350,  "The  Marriage  Celebration  in  the  United 
States,"  p.  520,  and  "Reform  in  the  Celebration  of  Marriage,"  p.  680. 

2  For  a  summary  of  these  special  provisions  see  page  39,  (3h) . 

12 


PROPOSED  REFORMS  SUMMARIZED 

tested  and  tried  next  steps,  but  the  new  measures  will  receive  espe- 
cial attention  in  our  proposed  study  of  marriage  law  administration. 
The  opinions  of  two  of  our  authorities  regarding  the  general  need 
for  reform  in  American  marriage  laws^  is  expressed  in  the  following 
quotations : 

It  may  reasonably  be  doubted  whether  any  people  in  occidental  civilization 
has  marriage  laws  so  defective  as  ours.  Almost  every  conceivable  blunder  has 
been  committed.^ 

In  no  part  of  the  whole  range  of  human  activity  is  there  such  imperative  need 
of  state  interference  and  control  as  in  the  sphere  of  the  matrimonial  relations.' 

"The  law  makes  clear  and  full  provision  for  contracts  affecting  the  sale  of  houses 
and  lands,  horses  and  dogs,  and  goods  and  chattels  of  every  description;  and  why 
marriage,  the  most  important  of  all  human  contracts,  should  not  be  as  anxiously 
defined  and  provided  for,  and  thus  placed  beyond  the  reach  of  both  fraud  and 
doubt,  appears  to  me  to  be  one  of  the  greatest  anomalies  in  the  law  of  a  Christian 
country."  These  are  the  words  of  an  eminent  Scotch  lawyer,  with  reference  to 
the  law  of  Scotland.  They  equally  apply  to  the  common  law  of  the  United 
States.* 

A  striking  illustration  of  the  general  defect  against  which  this 
complaint  is  lodged  appears  in  a  statement  recently  noted  in  the 
Montana  Code  of  Laws  to  the  effect  that  "the  provisions  of  other 
portions  of  the  Code  in  relation  to  contracts  and  the  capacity  of 
persons  to  enter  into  them  have  no  application  to  the  contract  of 
marriage." 

That  two  of  our  authorities  do  not  regard  the  proposals  here  made 
as  panaceas  for  all  our  matrimonial  ills  is  apparent  from  the  follow- 
ing paragraphs : 

It  should  clearly  be  understood  at  the  outset  that  the  moderate  progressives, 
in  favoring  reform  of  the  domestic  relations  codes  of  the  various  nations  are  not 
unduly  optimistic  with  regard  to  the  happy  results  to  be  secured  by  such  methods. 

^  It  is  interesting  to  note  that  the  marriage  laws  in  one  of  our  dependencies,  the 
Panama  Canal  Zone,  reflecting  as  they  do  the  laws  of  continental  Europe,  are 
nearer  the  standards  recommended  by  our  authorities  in  at  least  two  particulars 
than  are  the  laws  of  most  of  our  states.  Thus  common  law  marriages  are  not 
recognized,  and  a  15  days'  notice  of  intention  to  marry  is  required.  In  addition 
a  solemnization  must  be  before  a  civil  official,  his  secretary,  and  two  witnesses,  the 
celebrant  being  obliged  to  inquire  of  the  contracting  parties  whether  they  join  in 
matrimony  of  their  own  free  will,  and  to  inform  them  of  the  nature  of  the  contract 
and  of  the  mutual  duties  they  are  to  assume. 

2 Howard,  George  Elliott:  "Social  Control  of  the  Domestic  Relations,"  Pa- 
pers and  Proceedings,  American  Sociological  Society,  Vol.  V,  p.  222.  The  Uni- 
versity of  Chicago  Press,  1911. 

'Howard,  George  Elliott:  A  History  of  Matrimonial  Institutions,  Vol.  Ill, 
p.  184.    The  University  of  Chicago  Press,  1904. 

*  Cook,  p.  245. 

13 


AMERICAN  MARRIAGE  LAWS 

Every  thoughtful  social  observer  must  realize  soon  or  late  that  good  laws  do  not 
guarantee  good  societies,  good  homes  or  good  characters.  The  most  that  en- 
lightened legislation  can  accomplish  is  to  furnish  certain  external  conditions  and 
influences  favorable  to  wholesome  social  life  in  one  or  more  of  its  multiform  phases. 
Beyond  this  it  can  do  little.  But  to  secure  wise  and  equitable  conditions  of  life 
is  one  of  the  most  essential  functions  of  government.^ 

A  wide  field  for  beneficent  legislation  therefore  remains;  and  although  mor- 
ality "  can  not  be  legislated  into  a  people,"  it  is  precisely  by  wise  measures  of  this 
character  that  the  lawmaker  can  render  powerful  aid  in  the  creation  of  an  envi- 
ronment favorable  to  moral  and  social  progress.^ 

It  is  in  the  spirit  expressed  in  the  above  paragraphs  that  the 
recommendations  of  these  writers  have  been  assembled  and  pre- 
sented here  in  summary  form. 

I.    COMMON  LAW  MARRIAGES 

All  four  authorities  urge  that  common  law  or  non-ceremonial 
marriages  be  explicitly  declared  null  and  void.  Such  marriages  are 
still  recognized  in  26  states,  and  possibly  are  valid  in  six  other 
states  in  which  their  exact  status  has  not  been  clearly  settled.^ 
Since  courts  have  frequently  reversed  themselves  on  the  subject,  it 
is  urged  that  the  status  of  such  marriages  be  made  sure  by  statu- 
tory enactment.  For  reference  to  the  changes  in  the  situation  in 
the  last  15  years  due  to  the  passage  of  new  laws  or  to  court  decisions, 
see  page  32. 

Common  law  marriage  as  an  American  practice  has  its  origin  in 
the  English  common  law,  though  it  has  been  forbidden  by  English 
statute  for  over  150  years.  What  alliances  of  this  sort  are,  or  may 
be,  has  been  expressed  in  many  judicial  opinions.  Among  them  the 
following  may  be  quoted : 

It  is  sufficient  if  the  acts  and  declarations  of  the  parties,  their  reputation  as 
married  people,  and  the  circumstances  surrounding  them  in  their  daily  lives, 
naturally  lead  to  the  conclusion  that,  although  they  began  to  live  together  as  man 
and  mistress,  they  finally  agreed  to  live  together  as  husband  and  wife.  (Gall  v. 
Gall,  114,  N.  Y.  109,  118;  21  N.  E.  106,  109.) 

These  loose  and  irregular  contracts,  as  a  general  thing,  derive  no  support  from 
morals  or  religion,  but  are  most  generally  founded  in  a  wanton  and  licentious  co- 
habitation. Hence  the  law  of  the  state  has  given  them  no  sanction.  (Dennison 
V.  Dennison,  35  Maryland  380.) 

1  Goodsell,  Willystine:  A  History  of  the  Family  as  a  Social  and  Educational 
Institution,  p.  536  sq.     New  York,  The  Macmillan  Co.,  1915. 

2  Howard,  Matrimonial  Institutions,  p.  203. 

3  For  the  list  of  states,  see  p.  31  (2). 

14 


PROPOSED  REFORMS  SUMMARIZED 

But  another  judicial  decision  in  Maryland  has  given  them  sanc- 
tion in  practice  by  the  use  of  a  legal  fiction  which  the  lay  mind  finds 
it  hard  to  fathom.  In  the  decision  referred  to  it  is  stated  that 
"there  cannot  be  a  valid  marriage  without  a  religious  ceremony; 
but  marriage  may  be  proved  by  general  reputation,  cohabitation 
and  acknowledgment,  and  when  these  exist  it  will  be  inferred  that 
a  religious  ceremony  has  taken  place  although  evidence  may  not  be 
obtained  of  the  time,  place  and  manner  of  the  celebration."^ 

Regarding  such  marriages  Howard  writes  that  "practically  all 
the  hardship  and  social  anarchy  caused  by  the  canon  law  at  its 
wickedest  survives  in  our  common  law  marriage,  ...  a  cus- 
tom which  legalizes  and  virtually  invites  impulsive,  impure  and 
secret  unions. "^ 

Goodsell's  position  is  stated  with  almost  equal  positiveness  as 
follows : 

Is  it  not  an  amazing  fact  that,  in  a  matter  which  so  profoundly  affects  the  dig- 
nity and  stability  of  the  family  institution,  society  should  be  so  slow  to  take  en- 
lightened action?  Surely  no  legislative  reform  is  more  needed  than  clear  and 
positive  statutes  declaring  such  loosely  contracted  unions  null  and  void.' 

It  is  not  merely  the  public  which  suffers  through  the  system  of 
common  law  marriages,  for  Cook  points  out  that  a  marriage  of  this 
sort  "fails  to  protect  not  only  the  contracting  parties,  but  also  the 
families  to  which  they  belong.  Indeed  to  protect  the  latter  it  makes 
not  the  least  attempt,  and  in  this  respect  it  is  far  behind  the  law  of 
Western  Europe."* 

It  is  in  his  historical  discussion  of  the  subject  that  Cook  is  most 
illuminating.     We  quote  him,  therefore,  at  some  length. 

But  our  common  law  is  a  heritage  from  the  past.  ...  In  the  leading 
nations  of  Europe,  the  Roman  law  has  been  so  modified  by  statute  as  to  give  a 
system  of  marriage  celebration  conducive  to  the  protection  of  individuals  and  of 
the  stability  of  society.  In  the  United  States,  however,  there  has  been  not 
progress,  but  retrogression;  and  today  our  common  law  is  looser  than  was  the 
law  even  in  later  Rome.* 

Ours  is  the  Roman  law  of  Justinian  minus  the  element  of  parental  consent. 
In  Rome,  the  bridegroom  went  openly  in  the  daytime  to  the  house  of  the  bride's 
father,  and  with  his  consent  led  her  away  to  his  own  home.  In  most  of  the 
United  States,  he  may  go  by  stealth  at  night,  and  carry  her  off  without  the  knowl- 
edge or  consent  of  her  parents.     If,  during  the  proceeding,  the  runaways  seriously 

*  Richardson  v.  Smith,  80  Maryland  89. 
2  Howard:  Proceedings,  op.  cit.,  p.  222. 
»  Goodsell,  The  Family,  etc.,  p.  537.         *  Cook,  p.  528.         «  Cook,  p.  245. 

15 


AMERICAN  MARRIAGE  LAWS 

and  voluntarily  agree  eo  instanti  to  be  husband  and  wife,  ipso  facto  they  become 
such  in  law.^ 

The  [American]  colonists  .  .  .  built  up  for  themselves,  by  custom  and  by 
statute,  a  system  adapted  to  the  various  phases  of  society  and  of  religion  that 
existed  among  them  ....  The  one  thing  everywhere,  without  which  the 
marriage  tie  could  not  be  constituted  was  a  solemnization  in  the  presence  of  an 
authorized  third  person.  .  .  .  The  colonial  system  of  celebration  was  con- 
tinued in  the  States,  and  for  many  years,  under  the  Constitution,  remained  essen- 
tially unchanged.  .  .  .  But  in  the  early  part  of  this  century  there  arose  in 
the  courts  a  discussion  regarding  the  nature  of  our  common  law,  and  the  relation 
of  that  law  to  our  statute  law  in  governing  the  celebration  of  marriage — a  dis- 
cussion which  since  then  has  constantly  increased,  and  has  gradually  brought 
about  a  revolution  unparalleled  in  the  history  of  our  subject.  ...  It  has 
destroyed  the  colonial  system,  and  has  introduced  into  our  law  much  of  the  in- 
security, the  irreverence,  the  license,  of  the  Middle  Ages.  Our  common  law  today 
is  the  canon  law  that  existed  prior  to  the  Council  of  Trent.^ 

It  appears  that  in  the  course  of  the  discussion  referred  to  most 
states  followed  the  lead  of  Chancellor  Kent  of  New  York  state  in 
upholding  common  law  marriages,  while  a  sturdy  group  of  dissenting 
states  accepted  instead  the  Massachusetts  doctrine  that  such  mar- 
riages never  have  had  any  sanction  in  this  country. 

More  fully  than  our  other  authorities,  Cook  expresses  the  funda- 
mental principles  of  good  law  that  are  violated  in  the  recognition  of 
common  law  marriages.     He  writes  as  follows : 

It  is  certainty  and  simplicity,  then,  at  which  first  of  all  the  states  should  aim  in 
dealing  with  this  subject.  In  the  words  of  Mr.  Boyd  Kinnear,  an  eminent  English 
barrister,  the  law  of  the  marriage  celebration  should  "embrace  the  maximum  of 
simplicity  and  the  maximum  of  certainty:  of  simplicity,  because  it  affects  every 
class,  and  almost  every  person,  the  most  humble  and  illiterate  as  well  as  the  most 
exalted  or  learned,  and  because  it  has  to  be  known  and  acted  on  in  the  absence 
not  only  of  legal  advice,  but  often  in  the  absence  of  even  ordinary  common-sense 
counsel ;  of  certainty,  because  it  affects  a  contract  and  social  relation  the  most  im- 
portant that  can  arise  between  human  beings — because  it  affects  the  foundation 
of  society  itself,  and  influences  the  fate,  it  may  be  the  eternal  fate,  of  innumerable 
individuals"  .  .  .  Our  predominant  common  law  .  .  .  does  contain 
the  element  of  simplicity.  ...  At  the  same  time,  what  form  [of  marriage]  is 
more  repugnant  to  the  certainty  of  the  fact  of  the  parties'  consent,  and  hence  is 
more  objectionable  for  the  practice  of  a  civilized  community?  In  short,  certainty 
is  not  to  be  obtained  without  publicity,  and  hence  the  common  law  must  be  re- 
pealed. The  primary  principle  of  the  colonial  system  must  be  enacted ;  that  is 
to  say,  the  interposition  of  a  third  person,  duly  authorized,  must  be  made  indis- 
pensable to  constitute  matrimony.' 

The  Commissioners  give  no  reasons  for  their  recommendation  in 
regard  to  common  law  marriages.  They  simply  prescribe  in  Sec- 
tion XXIII  of  the  act  they  recommended  in  1911  for  adoption  in  all 

iCook,  p.  527.  2  Cook,  p.  520  sq.  ^  Cook,  pp.  681  and  682. 

i6 


PROPOSED  REFORMS  SUMMARIZED 

the  States^  that  "all  marriages  hereafter  contracted"  in  any  other 
than  the  prescribed  ceremonial  manner  or  without  the  issuance  of  a 
license  "shall  be  null  and  void."  The  ceremony  was  clearly  re- 
garded as  the  more  important  part,  for  the  Commissioners  provide 
an  exception  regarding  the  latter  which  recognizes  the  validity  of  an 
unlicensed  marriage,  under  specified  conditions,  if  it  has  been  duly 
solemnized.'^ 

"Common  law  marriage  is  now  supported,"  Howard  writes,  "on 
two  principal  grounds.  The  innocent  offspring,  we  are  told,  ought 
not  to  suffer  because  the  parents  have  neglected  the  formalities 
prescribed  by  a  mere  statute.^  Moreover,  to  declare  an  irregular, 
perhaps  a  clandestine,  union  void  is  to  invade  the  most  sacred  right 
of  the  individual." 

II.    THE  MARRIAGEABLE  AGE 

As  to  "marriageable  age" — the  age  below  which  persons  may  not 
marry^ — the  authorities  differ,  Howard  recommending  the  age  of 
majority,  and  the  Commissioners'  Act  leaving  the  age  to  be  fixed 
by  law  in  each  state.^  In  17  states  no  marriageable  ages  have  been 
fixed  by  law  and  presumably  the  common  law  ages  are  in  force — 14 
for  males  and  12  for  females.  The  usual  statutory  ages  are  18  for 
males  and  16  for  females. 

Howard  says:   "The  age  below  which  marriage  may  not  be  con- 

^  An  Act  relating  to  and  regulating  Marriage  and  Marriage  Licenses  approved 
by  Conference  of  Commissioners  on  Uniform  State  Laws  and  recommended  for 
adoption  in  all  the  states,  August,  1911.  This  act  is  known  as  the  "Marriage 
License  Act."  The  office  of  the  Commissioners  is  at  Columbia,  Mo.;  Manley  O. 
Hudson  is  Secretary. 

2  For  a  fuller  statement  of  this  exception  see  page  22. 

'  Thus  a  correspondent  in  Oklahoma  writes:  "Our  courts  have  gone  the  limit 
in  upholding  these  irregular  marriages.  This  is  true,  very  largely,  because  of  the 
fact  that  we  have  so  many  Indians  here  and  many  of  them  so  ignorant  of  the  law 
that  a  formal  marriage  is  entered  into  by  the  more  educated  class  of  Indians  but 
the  full-bloods  usually  take  up  with  each  other  and  live  as  man  and  wife." 

*  For  a  fuller  discussion  of  the  term  "marriageable  age"  and  of  the  ages  that 
have  been  established,  see  p.  32,  (2).  The  importance  of  the  question  is  indi- 
cated in  a  New  Mexico  decision  which  reads  as  follows: 

"The  marrying  of  a  female  under  15  belongs  to  the  class  of  statutory  misde- 
meanors where  knowledge  of  the  person's  age  and  intent  to  marry  when  under  age 
is  not  a  necessary  element  of  the  offense.  In  a  matter  of  such  importance  to  the 
race  the  law  imposes  upon  the  officiating  officer  the  duty  of  ascertaining  at  his 
peril  the  age  of  the  persons  marrying."     (Territory  v.  Harwood,  15  N.  Mex.  426.) 

5  Section  V. 

2  17 


AMERICAN  MARRIAGE  LAWS 

tracted  ought  to  be  that  of  legal  majority  for  both  the  man  and 
woman.  'Majority'  is  the  law's  simple  device  for  securing  mental 
maturity  in  the  graver  affairs  of  life.  Is  not  wedlock  as  serious  a 
business  as  making  a  will  or  signing  a  deed?  Immature  marriages 
are  a  fruitful  source  of  evil;  why  should  the  parent,  often  ignorant 
or  selfish,  have  the  power  of  legalizing  them  by  his  consent?"^ 

Cook  and  Goodsell  have  no  recommendation  on  this  point.  There 
is  no  doubt  that  a  minimum  age  should  be  fixed  higher  than  those 
recognized  in  common  law,  but  Howard's  recommendation  that  this 
be  the  age  of  majority  will  hardly  meet  with  general  approval  from 
social  workers,  for  examples  from  their  experience  show  how  fre- 
quently it  is  necessary  to  treat  different  people  in  different  ways. 
There  are  physiological  differences  due  to  racial  or  climatic  influences 
to  be  considered,  and  also  varying  marital  traditions  in  our  diverse 
population  which  the  state  cannot  sweep  aside  with  impunity  if  its 
enactments  are  to  accomplish  more  good  than  harm. 


III.  NOTICE  OF  INTENTION  TO  MARRY 
In  the  belief  of  all  four  authorities  a  barrier  is  needed  against 
hasty  marriages.  Such  a  barrier  exists  by  law  in  only  eight  states.^ 
It  takes  the  form  of  a  provision  that  a  period  of  time,  usually  five 
days,  must  elapse  between  the  application  for  a  marriage  license  and 
its  granting.  Regarding  such  a  provision  the  authors  whose  views 
are  summarized  write  as  follows: 

There  is  still  graver  fault  in  the  license  laws  of  nearly  the  whole  country.  No- 
where, except  in  Porto  Rico,  is  there  any  adequate  provision  regarding  notice  or 
the  filing  and  trial  of  objections  to  a  proposed  marriage.  .  .  .  All  this  is  con- 
trary to  sound  public  policy.  The  notice  of  intention  should  be  recorded  for  a 
reasonable  period,  say  ten  days,  before  issuance  of  the  license;  and  during  this 
term  it  should  be  officially  posted,  and  also  published  in  the  newspapers —not 
merely  concealed  in  the  register  or  published  at  the  discretion  of  the  official,  as  is 
now  the  usual  course.  Objections  might  then  be  filed,  and  in  case  of  need  tried 
in  a  court  clothed  with  proper  jurisdiction,  before  the  celebration  were  allowed  to 
proceed.  Under  the  existing  state  legislation  it  would  be  difficult,  certainly  awk- 
ward, to  stop  a  proposed  marriage  on  the  ground  of  alleged  legal  impediments. 
To  make  an  objection  effective,  it  might  be  necessary  either  to  "anticipate  the 
notice"  or  to  interrupt  the  nuptial  ceremony.'  [This  possibility  had  been  sug- 
gested by  Cook.] 

1  Proceedings,  p.  222. 

2  For  a  list  of  these  states  and  a  further  discussion  of  the  subject  see  p.  36,  (3c). 

3  Howard:  Matrimonial  Institutions,  pp.  191  and  192. 

I8 


PROPOSED  REFORMS  SUMMARIZED 

Such  a  delay,  together  with  publication  of  the  intention  of  the  parties  to  marry, 
should  be  obligatory  in  every  State  in  order  that  illegal  marriages  or  those  con- 
trary to  the  best  interests  of  the  individuals  or  of  society  may  be  prevented.^ 

"It  is  the  duty  of  the  State,"  said  the  [British]  Royal  Commission,  "to  dis- 
courage and  place  obstacles  in  the  way  of  sudden  and  clandestine  marriages,  both 
for  the  sake  of  inducing  forethought  and  deliberation  generally,  in  the  formation 
of  indissoluble  relations,  upon  which  the  happiness,  usefulness,  and  morality  of 
life  depend;  and  also  for  the  special  purposes"  of  preventing  illegal  and  irregular 
relations,  and  "of  enabling  parents  ...  to  protect  minors  from  improvident 
and  unsuitable  connections."  .  .  .  In  France  and  in  England  ...  the 
provisions  regarding  these  formalities  are  both  definite  and  systematic.  They  are 
worthy  of  careful  consideration  in  the  amendment  of  our  law.  The  application 
or  notice  must  contain  a  full  legal  description  of  the  parties  and  of  their  parents; 
and  between  its  filing  and  the  issuing  of  the  certificate  a  certain  time  must  elapse, 
during  which  the  notice  must  be  posted  in  a  public  place.  Thus  ample  oppor- 
tunity is  given,  in  the  initiatory  steps  of  the  proceeding,  for  public  objections  to  its 
conclusion.  If  such  objections  are  made,  they  must  be  heard  by  a  competent 
court  before  the  regular  course  is  resumed.  But  in  most  of  the  United  States, 
not  only  does  the  notice  contain  an  insufficient  description  of  the  parties,  but  also 
the  officer  is  allowed  to  issue  his  certificate  directly  upon  the  filing  of  the  notice, 
thus  excluding  any  public  objection  at  the  very  time  when  it  can  be  fully  and  fairly 
considered  .2 

The  act  which  the  Commissioners  recommend^  calls  for  a  five- 
days'  advance  notice  and  for  its  publication.  It  also  establishes  a 
procedure  for  the  filing  and  hearing  of  objections. 

IV.  THE  MARRIAGE  CELEBRANT 
The  recommendations  of  Howard  and  Cook  center  here  around 
making  the  solemnization  of  marriage  a  more  responsible  and  better 
safeguarded  social  function.  Goodsell  does  not  refer  to  this  phase  of 
the  subject  and  the  Commissioners'  Act^  leaves  the  naming  of  both 
civil  and  religious  celebrants  to  the  states. 

Few  people  realize,  probably,  that  in  Pennsylvania  and  West 
Virginia  anyone  who  chooses  to  do  so  may  solemnize  marriages. 
Custom  prescribes  certain  religious  and  civil  celebrants,  but  the  law 
is  silent  on  the  subject.  From  this  extreme  of  laissez  faire  the 
statutory  provisions  vary  widely  until  the  most  explicit  provisions 
are  reached  in  the  eight  states  that  require  all  religious  celebrants 
to  be  licensed  and  registered.  In  1888  Cook  called  attention  to  the 
exceeding  looseness  of  our  laws  on  this  point : 

In  the  constitution  of  marriage,  a  clergyman  acts  under  the  authority  and  as 
the  agent  of  the  state.     Is  there  any  reason  why  he  should  not  submit,  like  other 

1  Goodsell:  The  Family,  etc.,  p.  538.  ^  Cook:  p.  686  sq. 

»  Sections  III  and  VI.  *  Section  I. 

19 


AMERICAN  MARRIAGE  LAWS 

civil  officers,  to  close  scrutiny  and  proper  obligation?  ...  By  the  Virginia 
act  of  1780,  "any  ordained  minister  of  the  gospel"  was  authorized  to  solemnize 
marriage,  provided  he  produced  before  the  county  court  credentials  of  his  ordina- 
tion and  of  his  good  standing  in  his  denomination,  took  the  oath  of  allegiance  to 
the  Commonwealth,  and  gave  bond  with  two  or  more  sureties  "for  the  true  and 
lawful  performance  of  his  trust."  .  .  .  The  principle,  at  least,  is  worthy  of 
general  acceptance.     .     .     . 

The  statutes  are  fully  as  lax  with  the  civil  officer  as  with  the  minister.  .  .  . 
There  remains  the  surprising  and  disgraceful  fact  that  there  are  in  the  city  of  Bos- 
ton alone  over  two  thousand  justices  of  the  peace  with  absolutely  no  special  quali- 
fications and  hardly  any  responsibility,  but  with  full  authority  to  represent  society 
in  the  constitution  of  the  most  important  civil  relation,  in  which  both  the  con- 
tracting parties  and  the  State  are  supremely  interested.     .     .     .^ 

A  strict  responsibility  in  the  official  celebrant,  whether  minister  or  civil  officer, 
is  hardly  possible  unless  the  exercise  of  his  office  is  confined  to  reasonable  terri- 
torial limits.  .  .  .  With  these  [specifiedl  exceptions,  as  far  as  the  law  is  con- 
cerned, a  minister  resident  or  settled  in  Maine  may  solemnize  marriage  in  Texas — 
a  degree  of  confidence  reposed  by  the  civil  power  in  no  other  of  its  agents.  Indeed, 
it  would  be  difficult  to  find  another  instance  of  such  complete  renunciation,  or 
rather  neglect,  of  all  control.^ 

Howard  is  in  accord  with  these  suggestions,  as  the  following  quo- 
tations show: 

The  qualified  minister  should  be  authorized  to  act  only  within  the  local  district 
of  his  permanent  residence,  the  limits  thereof  to  be  defined  by  statute  .  .  . 
apparently  in  the  great  majority  of  states  and  territories,  although  the  statutes 
are  often  far  from  clear,  all  qualified  ministers,  residing  anywhere  in  the  United 
States,  may  act.     .     .     . 

Another  useful  lesson  may  be  learned  from  the  early  laws.  Proofs  of  ordina- 
tion by  the  filing  of  credentials  were  often  demanded.  .  .  .  Rhode  Island 
has  thus  a  careful  system  of  local  registration;  .  .  .  but  in  the  majority  of 
cases  no  such  precautions  are  specified  in  the  statutes.     Here  is  need  of  reform. 

The  laws  regarding  the  civil  ceremony  are  also  seriously  defective,  if  not  in  all 
respects  equally  lax.  The  magistrate  in  the  exercise  of  his  functions  is  not  usually 
restricted  to  a  local  district  sufficiently  small  to  guarantee  safe  administration. 
.  .  .  At  present  in  twenty-two  states  and  territories  the  justice  of  the  peace, 
or  the  corresponding  local  officer,  is  confined  to  his  own  county  or  district.  Else- 
where he  may  act  anywhere  within  the  commonwealth ;     .     .     . 

Nor  are  the  persons  to  whom  is  confided  this  important  social  trust  possessed 
of  the  needful  qualifications.  They  are  not  selected  because  of  special  fitness. 
.  .  .  The  duties  of  such  a  post  are  conferred,  ex  officio,  in  a  haphazard  fashion, 
upon  a  great  variety  of  functionaries,  who  are  either  incompetent  or  else  too  busy 
with  other  matters  to  discharge  them  properly.  As  a  rule,  the  justice  of  the  peace 
is  thus  notoriously  unfit;  and  there  is  something  grotesque  in  giving  authority  to 
solemnize  marriages  to  aldermen  and  police  justices,  as  in  New  York;'  to  speakers 
of  the  house  and  senate,  as  in  Tennessee;  or  to  the  county  supervisors,  as  in 
Mississippi.^ 

^  This  is  no  longer  true,  for  in  Massachusetts  at  present  the  number  of  justices 
of  the  peace  who  may  solemnize  marriages  in  each  locality  is  closely  limited  by 
law.     But  no  such  limitation  exists  in  most  states.     For  details,  see  p.  41,  (4a). 

2  Cook:  pp.  684-686.  '  No  longer  true  of  aldermen. 

*  Howard,  Matrimonial  Institutions,  p.  188  sq. 

20 


PROPOSED  REFORMS  SUMMARIZED 

V.  STATE  REGISTRATION  OF  MARRIAGES 
A  compulsory  system  of  state  registration  is  recommended  by 
all  of  our  authorities.^  In  20  states  such  registration  is  not  required. 
It  is  hard  to  see  why  so  important  a  reform  has  been  delayed.  One 
alleged  explanation  has  come  to  us  from  a  correspondent  in  an  other- 
wise very  progressive  state  who  writes  that  attempts  to  pass  a  law 
of  this  sort  have  been  unsuccessful,  due  largely  to  the  opposition  of 
an  association  of  [license  issuing]  clerks  who  have  opposed  this 
measure  because  it  would  deprive  them  of  certain  registration  fees. 

It  is  only  through  compulsory  state  registration  of  marriages  that 
reliable  marriage  statistics  for  a  state  can  be  compiled.  Such  regis- 
tration, moreover,  greatly  facilitates  the  search  for  a  marriage 
record  when,  for  example,  it  is  believed  that  a  man  or  a  woman 
has  been  married,  but  it  is  not  known  in  which  county  or  in  which 
of  several  nearby  states  the  ceremony  may  have  taken  place. 

VI.    INTER-STATE  RELATIONS 

Only  one  of  the  authorities  here  quoted,  the  Commissioners,  has 
a  direct  recommendation  intended  to  prevent  the  evasion  of  a  state's 
marriage  laws  through  contracting  marriage  in  another  state.  The 
act  recommended  by  the  Commissioners  in  19 12^  has  already  been 
referred  to.  It  contains  but  four  sections,  which  are  shown  in  full 
on  page  25.  They  provide  in  brief  that  if  residents  of  a  state,  who 
intend  to  remain  so,  contract  a  marriage  elsewhere  that  is  forbidden 
and  void  in  their  own  state,  such  a  marriage  remains  void  in  their 
state  of  residence  in  spite  of  its  having  been  contracted  elsewhere. 
This  act  has  been  adopted  in  Illinois,  Louisiana,  Massachusetts, 
Vermont,  and  Wisconsin. 

Another  form  of  protection  from  neighboring  states  with  lower 
marriage  law  standards  is  the  advance  notice  law  already  referred  to 
on  page  18.  We  are  informed  that  the  chief  reason  for  the  adoption 
of  this  law  in  the  New  England  states  was  a  desire  to  stop  the  con- 

1  Howard:  Matrimonial  Institutions,  p.  193;  Goodsell:  p.  538  sq;  Cook:  p. 
688;  and  the  Commissioners'  Act,  Section  XXVIII. 

2  An  Act  on  the  subject  of  marriages  in  another  state  or  country  in  evasion  or 
violation  of  the  laws  of  the  state  of  domicile;  approved  by  the  Conference  of 
Commissioners  on  Uniform  State  Laws  and  recommended  for  adoption  in  all  the 
states,  August,  1912.     This  act  is  known  as  the  "  Marriage  Evasions  Act." 

21 


AMERICAN  MARRIAGE  LAWS 

tracting  of  marriages  out  of  the  state  for  the  express  purpose  of 
evasion.  As  a  result  of  efforts  on  the  part  of  those  interested,  these 
six  states,  one  after  another,  have  adopted  the  same  standard  in  this 
particular;  non-residents  must  wait  five  days  for  their  licenses.^ 
It  is  reported  that  this  law  has  greatly  reduced  the  number  of  non- 
resident marriages  in  New  England. 

As  this  study  goes  to  press  word  comes  from  a  middle  western 
state  in  which  the  repeal  of  the  five-day  law  is  being  attempted. 
Prospective  brides  and  grooms  who  are  unwilling  to  wait  the  neces- 
sary five  days  are  getting  their  licenses  and  having  the  ceremonies 
performed  just  across  the  state  line,  and  the  fees  of  license  clerks  in 
the  home  state  are  in  jeopardy.  If  the  New  England  solution  of 
this  difficulty;  namely,  getting  the  adjoining  states  to  adopt  the 
same  five-day  rule,  has  not  been  attempted  in  the  western  state 
referred  to,  it  should  be. 


VII.   A  SUMMARY  OF  THE  COMMISSIONERS'  ACTS 

As  the  Marriage  License  Act  recommended  by  the  Commissioners 
in  1911  is  at  present  out  of  print,  we  reproduce  an  outline  of  its 
chief  provisions  at  this  point.  For  convenience  of  reference,  this 
outline  follows  the  form  established  for  each  of  the  summaries  by 
states  shown  in  Part  III.  The  Commissioners'  Marriage  Evasions 
Act  recommended  in  1912  is  given  in  full  under  (7).  Unless  other- 
wise specified  references  are  to  the  sections  of  the  Marriage  License 
Act. 

1.    Common  Law  Marriages 

Such  marriages  are  void.  All  marriages,  hereafter  contracted,  in  violation  of 
any  of  the  requirements  of  Section  I  of  the  act,  with  certain  exceptions  for  technical 
irregularities,^  are  null  and  void  (xxin) .  Section  I  provides  that  marriages  may 
be  validly  contracted  only  if  a  license  has  been  issued  therefor,  and  if  solemnized 
before  a  person  authorized  by  the  laws  of  the  state  to  celebrate  marriages,  by  the 
parties  declaring  in  the  presence  of  at  least  two  competent  witnesses  that  they 
take  each  other  as  husband  and  wife,  or  in  accordance  with  the  customs  of  any  re- 
ligious society,  etc.,  to  which  either  of  the  parties  may  belong,  by  these  persons 
making  the  same  declaration  in  the  presence  of  at  least  two  competent  witnesses. 

Under  certain  circumstances  a  marriage  license  is  "deemed  to  have  been 
issued."  This  is  provided  for  as  follows:  "Where  a  marriage  has  been  celebrated 
in  one  of  the  forms  provided  for  in  Section  I  of  this  act,  and  the  parties  thereto  have 
immediately  thereafter  assumed  the  habit  and  repute  of  husband  and  wife,  and 
have  continued  the  same  uninterruptedly  thereafter  for  the  period  of  one  year, 

>  And  in  certain  of  these  states  residents  also. 

*  Lack  of  authority  alone,  for  example,  on  the  part  of  the  celebrant,  or  lack  of  parental  con- 
sent, shall  not  invalidate  the  marriage  if  either  of  the  parties  fully  believed  that  the  two  were  mar- 
ried (xxiv  and  xxv). 

22 


PROPOSED  REFORMS  SUMMARIZED 

or  until  the  death  of  either  of  them,  it  shall  be  deemed  that  a  license  has  been 
issued  as  required  by  this  act"  (xxv).  The  parties  to  any  such  void  marriage 
may  at  any  time  validate  it  by  complying  with  the  requirements  of  the  act,  and 
the  issue  of  such  a  marriage,  if  any,  shall  thereupon  become  legitimate  (xxm). 

2.    Marriageable  Age 

Because  a  marriage  without  a  license  is  void  (xxiii),  the  age  below  which  a 
license  may  not  be  granted — i.  e.,  the  "marriageable  age  of  consent,"  to  be  fixed 
by  each  state — becomes  the  marriageable  age  (v). 

3.   The  Marriage  License 

a.  Requirement. — See  1  above. 

6.  Where  obtained, — From  an  official  (to  be  named  in  each  state)  of  the  place 
(town,  county,  etc.)^  in  which  one  of  the  parties  resides;  provided  that  if  both 
parties  are  non-residents  of  the  state,  the  license  may  be  obtained  from  the  speci- 
fied official  of  the  "place"  where  the  marriage  ceremony  is  to  be  performed  (ii). 
But  application  for  the  license  may  be  made  either  to  the  issuer  in  person  or  to  any 
magistrate  or  justice  of  the  peace  in  the  "place"  of  residence  of  one  party  or  the 
"place"  of  the  contemplated  marriage.     He  shall  forward  it  to  the  issuer  (iv). 

c.  Advance  notice,  objections,  etc. — At  least  five  days'  notice  of  intention  to 
marry  is  required,  but  in  an  emergency  a  probate  judge  may  allow  an  earlier 
issuance  (iii).  The  application  is  to  be  posted  in  the  office  of  the  issuer,  and  must 
show  the  names  and  residences  of  both  parties  and  the  date  of  application.  Objec- 
tions may  be  filed  by  any  one  under  oath  in  a  probate  court,  and  the  court  may 
require  the  parties  within  10  days  to  show  cause  why  the  license  should  not  be 
refused.  While  the  matter  is  pending  no  license  may  be  issued.  After  a  hearing 
the  court  may  issue  an  order  refusing  the  license,  the  costs  to  rest  in  its  discretion. 
The  costs  fall  on  the  objector  if  he  is  overruled  by  the  court  (vi). 

d.  Parental  consent. — Required  for  all  between  the  "marriageable  age  of  con- 
sent" and  the  "age  of  legal  majority,"  which  is  left  to  each  state  to  establish.' 
The  consent  must  be  given  under  oath  or  certified  under  the  hand  of  the  parents 
and  verified  by  an  affidavit  which  is  to  be  filed,  and  the  fact  of  consent  must  be 
entered  on  the  license  docket  (v) .  Penalty. — An  issuer  who  violates  this  provision, 
or  any  persons  who  swear  falsely  in  regard  to  the  age  of  minors,  or  pretend  to  be 
their  parents,  are  subject  to  a  fine  of  from  $100  to  $500  or  imprisonment  not  over 
one  year,  or  both  (vii). 

e.  Form  of  license. — The  license  is  to  be  directed  to  any  person  authorized  by 
law  to  solemnize  marriages,  authorizing  him  to  do  so  within  one  year;  or  to 
parties  who  are  to  be  married  without  a  celebrant,  authorizing  them  to  marry 
within  one  year.  In  the  latter  case  it  is  to  include  also  the  statement  of  the 
issuer  of  the  license  that  he  is  satisfied  that  there  is  no  legal  impediment  to  the 
marriage  according  to  the  rules  of  the  sect  of  at  least  one  of  the  parties.  The 
license  must  also  show  where  the  solemnization  is  allowed,  as  prescribed  in  4d 
following,  the  age  of  any  minor  applicants  and  the  fact  that  the  parent  has  con- 
sented to  the  marriage;  the  facts  as  to  prior  marriages,  if  any,  and  their  number 
and  manner  of  dissolution.  It  must  contain  a  statement  that  its  issuance  shall 
not  remove  any  legal  disability  to  marriage  which  may  exist.  Two  forms  of  li- 
cense are  prescribed  in  full,  one  for  solemnization  before  a  celebrant  and  the  other 
for  solemnization  without  a  celebrant  (x,  xi  and  xii). 

/.  Record  of  license. — A  record  shall  be  kept  in  a  book  to  be  supplied  by  the  state. 
In  "this  the  issuer  shall  record  all  applications,  all  licenses  issued  and  all  matters 

1  Hereafter  the  word  "place"  is  used  in  this  connection  with  the  meaning  here  shown. 
« Special  provision  is  made  for  issuing  a  license  when  there  is  no  parent,  guardian,  etc.,  com- 
petent to  act. 

23 


AMERICAN  MARRIAGE  LAWS 

he  is  required  to  ascertain.  The  book  is  open  to  public  inspection  (ix).  Penalty. 
— For  failure  to  enter  the  record  of  application  and  of  the  issuance  of  a  marriage 
license  immediately,  or  to  keep  the  record  open  to  public  inspection,  etc.,  the  issuer 
is  subject  to  a  fine  of  $50  (xx). 

g.  Life  of  license. — One  year  (x).  Penalty. — A  celebrant  who  solemnizes  a 
marriage  more  than  one  year  after  the  date  of  the  issuance  of  the  license  is  subject 
to  a  fine  of  from  $100  to  $500,  or  imprisonment  for  not  over  one  year,  or  both 
(xvi).  Either  or  both  of  the  parties  to  a  marriage  without  a  celebrant  are  subject 
to  a  similar  penalty  (xvii). 

h.  Other  penalties  and  prohibitions. — The  issuance  of  a  license  is  forbidden 
unless  the  parties  have  been  identified,  and  unless  both  have  filed  statements 
under  oath  relative  to  the  legality  of  the  contemplated  marriage  and  its  date; 
the  names  of  the  parties,  their  relationship  if  any,  ages,  nationality,  color,  residence 
and  occupation;  the  names  of  the  parents  if  the  parties  are  minors;  the  fact  of 
previous  marriages  if  any;  and  the  manner  of  dissolution.  The  issuance  of  a 
license  is  forbidden  if  there  is  any  legal  objection  to  the  marriage  (iv),  and  also 
unless  the  issuer  is  satisfied  that  neither  party,  if  a  non-resident,  is  debarred  by  the 
laws  of  the  state  in  which  he  is  a  resident  (Evasions  Act,  Section  3).  Penalties. — 
Any  issuer  who  shall  knowingly  issue  a  marriage  license  contrary  to  or  in  viola- 
tion of  the  provisions  of  the  act  is  subject  to  a  fine  of  from  $100  to  $500,  or  im- 
prisonment not  over  one  year,  or  both  (viii).  Applicants  or  other  persons  are 
subject  to  the  same  penalties,  for  wilful  and  false  swearing  in  regard  to  the 
competency  of  applicants  (vii).  For  issuing  a  license  to  a  non-resident  whose 
laws  debar  him  from  marriage,  the  issuer  is  subject  to  a  penalty  to  be  prescribed 
by  each  state  (Evasions  Act,  Section  4). 

4.  Solemnization 

a.  The  celebrant. — Each  state  is  to  define  both  the  civil  and  religious  celebrants. 
Solemnization  without  a  celebrant  is  allowed  if  one  of  the  contracting  parties  be- 
longs to  a  religious  society,  etc.,  in  which  this  is  customary  (i).  Penalty. — Any 
one  not  authorized  to  solemnize  marriages  who  shall  undertake  to  do  so  is  subject 
to  a  fine  of  from  $100  to  $1,000,  or  imprisonment  not  over  one  year,  or  both 
(xviii). 

b.  Presentation  of  license. — Required.  Penalty. — A  celebrant  is  subject  to  a 
fine  of  from  $100  to  $500,  or  imprisonment  for  not  over  one  year,  or  both,  for  sol- 
emnizing without  a  proper  license  presented  by  the  parties  (xvi). 

c.  Form  of  ceremony. — The  parties  must  declare  that  they  take  each  other  as 
husband  and  wife,  and  at  least  two  competent  witnesses  are  required  besides  the 
officiate  (i).  Penalty. — A  celebrant  who  solemnizes  a  marriage  without  requiring 
this  declaration  or  without  requiring  the  presence  of  the  witnesses  is  subject  to  a 
fine  of  from  $100  to  $500,  or  imprisonment  for  not  over  one  year,  or  both  (xvi). 

d.  Other  requirements  and  prohibitions. — The  marriage  may  be  solemnized  in 
any  "place"  in  the  state  except  in  the  case  where  both  parties  are  non-residents 
when  it  must  be  in  the  "place"  in  which  the  license  was  issued.  The  celebrant 
must  satisfy  himself  that  the  persons  presenting  themselves  are  the  parties  named 
in  the  license  (x).  Penalties. — Any  celebrant  who  shall  falsely  certify  as  to  the 
date  of  a  marriage,^  or  shall  solemnize  a  marriage  knowing  that  there  are  legal 
impediments,!  or  unless  the  consent  of  the  parents  of  a  minor  is  stated  in  the  license 
or  shall  solemnize  a  marriage  in  a  "place"  other  than  that  prescribed,^  is  subject 
to  a  fine  of  from  $100  to  $500,  or  imprisonment  for  not  over  one  year,  or  both 
(xvi).  A  celebrant  who  shall  solemnize  the  marriage  of  a  non-resident  debarred 
from  marriage  by  his  own  state's  laws  is  subject  to  a  penalty  to  be  fixed  by  each 
state  (Evasions  Act,  Section  4).     See  also  3g  above. 

1  The  same  penalty  for  this  offense  applies  to  either  or  both  parties  who  solemnize  marriage 
without  a  celebrant  (xvii). 

24 


PROPOSED  REFORMS  SUMMARIZED 

5.  The  Marriage  Record 

a.  Certificates  and  their  distribution. — The  marriage  certificate  must  be  furnished 
by  the  license  issuer  in  tripHcate  and  must  be  appended  to  the  license.  A  separate 
form  is  provided  for  those  who  solemnize  marriage  without  a  celebrant.  Each  cer- 
tificate must  contain  a  signed  statement  by  the  celebrant  to  the  fact,  place  and 
date  of  solemnization,  the  name  and  residence  of  each  party,  the  date  and  number 
of  the  license,  and  the  title  and  address  of  the  officer  who  issued  it.  It  shall  also 
contain  the  signatures  of  the  two  witnesses  to  a  statement  that  they  heard  the 
parties  take  each  other  for  husband  and  wife.  Those  who  solemnize  marriage 
without  a  celebrant  must  state  on  the  certificate  the  same  facts  except  the  resi- 
dence of  the  parties,  and  in  addition  must  state  the  name  of  the  society,  sect,  etc., 
to  which  either  party  belongs,  and  the  fact  that  the  issuer  had  certified  that  he  was 
satisfied  that  there  was  no  legal  impediment,  and  the  certificate  must  contain  the 
signature  of  two  witnesses  to  the  above  named  declaration.  On  the  triplicate 
copy  is  to  be  a  printed  statement  that  it  must  be  sent  to  the  licenser  within  30 
days  after  the  marriage  (xiii). 

The  celebrant  shall  report  the  marriage  by  sending  the  triplicate  copy  of  the 
certificate  to  the  issuer  of  the  license  within  30  days  after  the  marriage  (or  in  the 
case  of  solemnization  without  a  celebrant,  the  parties  shall  so  report).  The 
parties  are  to  receive  the  original  and  duplicate  copies  of  the  certificate  from  the 
celebrant  (xiv).  Penalty. — For  failure  to  transmit  the  triplicate  certificate  to  the 
issuer  within  30  days  the  celebrant  (or  either  or  both  of  the  parties,  where  there  is 
no  celebrant)  is  subject  to  a  fine  of  $100  (xix). 

b.  Local  record. — Required.  It  is  to  be  made  by  the  issuer  of  the  license  on 
the  docket  from  the  triplicate  certificate,  which  is  then  to  be  filed  (xv).  Penalty. 
— For  failure  the  issuer  of  the  license  is  subject  to  a  fine  of  $50  (xx). 

c.  State  record. — On  February  1st  of  each  year  the  issuer  shall  report  to  a  state 
official  (to  be  fixed  by  each  state)  giving  a  statement  for  the  preceding  calendar 
year  of  all  licenses  issued,  including  all  facts  required  to  be  ascertained  by  him  and 
all  marriage  certificates  returned  by  him.  Penalty. — For  failure  or  refusal  he  is 
to  forfeit  $100  (xxviii). 

6.  Inter-State  Relations* 

Section  1.  Be  it  enacted,  etc.,  That  if  any  person  residing  and  intending  to 
continue  to  reside  in  this  state  who  is  disabled  or  prohibited  from  contracting 
marriage  under  the  laws  of  this  state  shall  go  into  another  state  or  country  and 
there  contract  a  marriage  prohibited  and  declared  void  by  the  laws  of  this  state, 
such  marriage  shall  be  null  and  void  for  all  purposes  in  this  state  with  the  same 
effect  as  though  such  prohibited  marriage  had  been  entered  into  in  this  state. 

Sec.  2.  No  marriage  shall  be  contracted  in  this  state  by  a  party  residing  and 
intending  to  continue  to  reside  in  another  state  or  jurisdiction  if  such  marriage 
would  be  void  if  contracted  in  such  other  state  or  jurisdiction  and  every  marriage 
celebrated  in  this  state  in  violation  of  this  provision  shall  be  null  and  void. 

Sec.  3.  Before  issuing  a  license  to  marry  to  a  person  who  resides  and  intends 
to  continue  to  reside  in  another  state  the  officer  having  authority  to  issue  the 
license  shall  satisfy  himself  by  requiring  affidavits  or  otherwise  that  such  person  is 
not  prohibited  from  intermarrying  by  the  laws  of  the  jurisdiction  where  he  or  she 
resides. 

Sec.  4.  Any  official  issuing  a  license  with  knowledge  that  the  parties  are  thus 
prohibited  from  intermarrying  and  any  person  authorized  to  celebrate  marriage 
who  shall  knowingly  celebrate  such  a  marriage  shall  be  guilty  of  a  misdemeanor, 
and  shall  be  punished  by     .     .     . 

*  The  four  paragraphs  are  the  Evasions  Act  in  full. 
25 


AMERICAN  MARRIAGE  LAWS 


7.    Certain  Other  Provisions 


In  addition  to  the  provisions  shown  earlier  the  License  Act  contains  a  require- 
ment that  model  forms  for  applications,  statements,  affidavits,  licenses,  certifi- 
cates, etc.,  shall  be  prescribed  by  a  state  officer  (to  be  specified),  sample  copies  to 
be  supplied  to  each  authorized  issuer  of  licenses.  Supplies  of  forms,  etc.,  and  also 
the  marriage  docket  book,  are  to  be  furnished  by  the  state  to  each  issuer  at  the 
cost  of  the  "place"  of  issuance  (ix). 

Certified  copies  of  marriage  licenses  and  certificates  are  prima  facie  evidence  of 
marriage  (xxii). 


26 


PART  II 
THE  MARRIAGE  LAWS  BY  TOPICS 


II 

THE  MARRIAGE  LAWS  BY  TOPICS 

I.  Introduction 

THOSE  who  have  shared  in  the  increased  interest  recently- 
shown  in  the  laws  controlling  marriage  have  been  badly  handi- 
capped in  their  efforts  to  study  them  through  the  absence  of 
any  up-to-date  information  on  the  subject.  Nothing  of  a  com- 
prehensive character  has  been  published  since  the  Census  Office  issued 
a  summary  of  such  laws  as  they  existed  on  December  31,  1906.  Dur- 
ing the  intervening  thirteen  years  there  have  been  numerous  changes, 
with  the  result  that  the  census  compilation  is  now  much  out  of  date. 
In  their  preparation  of  the  summary  contained  in  the  following 
pages  the  authors  decided  to  restrict  themselves  to  what  seemed  to 
be  the  more  important  features  of  the  various  laws,  viewed  from  the 
social  standpoint.  By  thus  drawing  a  line  which  of  necessity  is  a 
somewhat  arbitrary  one  we  have  been  able  to  present  a  briefer  and 
it  is  hoped  a  more  generally  serviceable  compilation  than  would 
have  been  possible  otherwise.  Among  the  subjects  included  only 
incidentally  are  the  following: 

Bigamous  marriages 
Consanguineous  marriages 
Marriage  by  force,  menace  or  duress 
Marriage  by  false  personation 
Marriage  arid  seduction  proceedings 
Marriages  irregularly  carried  out 
Marriage  and  illegitimacy 

Other  subjects  covered  by  the  census  report  but  usually  omitted 
entirely  here  are  the  following: 

Definition  of  the  term  marriage 
Void  and  voidable  marriages 
What  marriages  may  be  annulled 
Fees  for  the  issuance  of  licenses,  etc. 
Re-marriage  during  the  lifetime  of  a  spouse 
Subsequent  marriage  after  divorce 
Encouragement  and  restraint  of  marriage 

It  is  apparent  from  a  glance  at  the  above  lists  that  in  the  main  the 
omitted  subjects  involve  either  highly  technical  legal  distinctions, 
or  are  penal  provisions  enacted  for  the  prevention  of  fraudulent 
marriages. 

29 


AMERICAN  MARRIAGE  LAWS 

This  summary  is  as  nearly  up-to-date  as  it  can  be  made  from  the 
codifications  and  session  laws  accessible  in  New  York  City.^  For 
each  state  the  latest  volume  consulted  is  shown  under  the  heading 
"Authorities."  Usually  only  statutory  law  has  been  considered, 
but  in  regard  to  marriageable  age  and  common  law  marriages  refer- 
ences have  been  made  to  court  decisions. 

Due  to  the  loose  manner  in  which  certain  laws  have  been  drafted, 
the  summaries  sometimes  contain  ambiguous  and  conflicting  pro- 
visions. Fortunately  these  points  are  not  numerous.  Except 
where  they  concern  matters  of  special  importance  no  attempt  has 
been  made  to  get  explanations  from  correspondents  in  the  states 
concerned.  But  in  regard  to  the  status  of  common  law  marriages 
and  the  marriageable  age  it  was  felt  necessary  to  have  our  material 
verified.  The  retention  of  49  lawyers  for  this  purpose  was  out  of  the 
question  and  we  accordingly  appealed  to  the  charity  organization 
societies  of  the  country — one  in  each  state.  When  we  could  get  no 
correspondent  in  that  way,  we  addressed  the  state  universities. 
Through  these  means  we  have  obtained  verification  or  correction  of 
our  statements  on  the  two  points  named  from  lawyers  in  46  states, 
and  in  many  states  other  doubtful  points  have  been  submitted  to 
them.  Without  this  valuable  assistance  our  results  could  not  have 
been  published,  and  we  are  deeply  indebted  to  the  societies,  col- 
leges, and  professional  men  for  their  help. 

For  the  sake  of  further  check  upon  the  accuracy  of  our  summaries, 
copies  of  marriage  law  forms  were  obtained  from  practically  all 
state  officials  who  are  authorized  to  prescribe  them,  and  from  issuers 
of  licenses  in  selected  cities  in  most  of  the  remaining  states.  These 
forms  were  all  compared  with  the  summaries,  and  it  is  believed  that 
the  latter  are  substantially  accurate.^  Complete  accuracy  is  im- 
possible, as  the  following  illustrations  will  indicate:  In  one  state 
the  secretary  of  the  charity  organization  society  presented  our 
inquiry  regarding  common  law  marriages  to  two  lawyers,  and  when 
she  found  they  disagreed,  a  former  judge  was  appealed  to.  The 
lawyer  who  assisted  us  in  still  another  state  wrote  as  follows  in  ex- 
planation of  a  conflict  that  we  had  noted:  "That  was  a  mistake 
of  the  Legislature  in  drawing  the  act." 

To  obtain  brevity  various  qualifying  phrases  which  are  necessary 
in  the  law  itself  have  been  omitted  from  these  summaries.  Thus 
the  statutes  relating  to  the  marriage  of  a  minor  ordinarily  require 
the  consent  of  his  parent  or  guardian,  or  in  some  states  his  custodian 
or  "next  friend."     We  refer  ordinarily  only  to  the  parent.     It  will 

^  In  the  law  library  of  Columbia  University. 

2  The  authors  will  welcome  word  from  any  who  may  notice  errors  or  omissions 
in  order  that  these  may  be  corrected  or  the  necessary  additions  made  in  later 
printings. 

30 


LAWS  BY  TOPICS 


be  understood  that  where  there  are  no  parents  the  law  usually  pre- 
scribes that  these  other  persons  may  act  in  their  stead. 

This  part  of  the  compilation,  Part  II,  contains  a  topical  summary 
of  the  various  state  laws.  For  each  of  the  18  topics  a  comparison 
is  offered  between  the  states.  Thus  the  points  of  agreement  in  their 
laws  are  brought  out,  and  the  points  of  contrast.  In  Part  III  the 
laws  of  each  state  are  re-classified  under  the  same  headings  that  are 
used  in  the  topical  summary. 

II.  Summary  of  Laws  by  Topics 
1.  COMMON  LAW  MARRIAGES 
Non-ceremonial  or  common  law  marriages^  are  recognized  in 
most  states.  They  have  been  clearly  declared  invalid  in  only  17 
states — in  six  by  statute,  and  in  11  others  by  court  decisions.  In 
three  states  where  the  status  is  doubtful  they  probably  are  not 
regarded  as  valid,  and  in  three  other  states  they  probably  are  valid. 
The  situation  is  shown  in  detail  in  the  following  list,  the  letters 
following  each  state  in  the  first  two  columns  indicating  the  method 
by  which  validity  or  invalidity  of  such  marriages  has  been  settled. 
The  abbreviations  used  are  s  for  statutory  law  and  c  for  court  de- 
cision. The  letter  q  when  added  indicates  that  the  validity  or 
invalidity  is  established  with  certain  qualifications: 


Status  Doubtful 
Probably  invalid 

Connecticut 

Delaware 

Maine 
Probably  valid 

District  of  Columbia 

New  Mexico 

Wyoming 


Invalid  Valid 

Arizona  (s)  Alabama  (c) 

Arkansas  (cq)  Colorado  (c) 

California  (s)  Florida  (c) 

Illinois  (s)  Georgia  (c) 

Kentucky  (sq)  Idaho  (s) 

Louisiana  (c)  Indiana  (c) 

Massachusetts  (c)  Iowa  (c) 

North  Carolina  (c)  Kansas  (sq) 

North  Dakota  (c)  Maryland  (cq) 

Oregon  (c)  Michigan  (c) 

Tennessee  (cq)  Minnesota  (c) 

Utah  (s)  Mississippi  (s) 

Vermont  (c)  Missouri  (c) 

Virginia  (cq)  Montana  (s)  \ 

West  Virginia  (c)  Nebraska  (c) 

Washington  (c)  Nevada  (c) 

Wisconsin  (s)  New  Hampshire  (sq) 

New  Jersey  (s) 

New  York  (c) 

Ohio  (c) 

Oklahoma  (c) 

Pennsylvania  (c) 

Rhode  Island  (c) 

South  Carolina  (c) 

South  Dakota  (s) 

Texas  (c) 

*  For  the  purpose  of  this  classification  a  marriage  without  either  civil  or  re- 
ligious ceremony — i.  e.,  a  marriage  by  consent  or  reputation — is  regarded  as  a 
common  law  marriage  even  though  a  license  may  have  been  issued  for  it. 

31 


AMERICAN  MARRIAGE  LAWS 

Common  law  marriages  have  been  subject  to  many  subtle  legal 
distinctions,  making  a  strict  classification  impossible.  Thus  in 
Kansas,  where  common  law  marriages  are  valid,  persons  contracting 
them  are  subject  to  a  fine.  Maryland  is  classed  here  as  recognizing 
such  marriages  in  practice,  in  spite  of  the  fact  that  technically  the 
ruling  is  that  recognition  is  denied.^  In  Louisiana  and  North 
Carolina  it  has  been  held  that  a  license  is  not  essential  though 
solemnization  is  necessary.  In  Mississippi,  however,  where  it  was 
first  declared  by  statute  that  a  license  was  essential,  a  proviso  was 
added  later  to  the  effect  that  the  section  is  not  to  be  construed  "so 
as  to  invalidate  any  marriage  that  is  good  at  common  law."  Mis- 
sissippi has  therefore  been  classed  as  recognizing  common  law 
marriages.  In  New  Hampshire,  similarly  classed,  the  court  decided 
that  in  the  absence  of  evidence  to  the  contrary  a  jury  might  find 
parties  to  be  married  on  evidence  that  they  had  cohabited  and 
acknowledged  themselves  to  be  man  and  wife,  but  that  these  facts 
of  themselves  did  not  constitute  marriage. 

It  is  interesting  to  notice  the  trend  of  thought  on  this  subject 
since  Howard's  Matrimonial  Institutions  was  published  15  years 
ago,  as  this  is  revealed  in  the  changes  that  have  occurred  in  the 
status  of  common  law  marriages.  During  the  period  considered 
such  marriages  have  gained  recognition  in  but  two  states,  while 
in  seven  states  recognition  has  been  denied  them.  In  five  states 
in  which  such  marriages  were  recognized  in  1904  they  are  not 
recognized  now,  the  reversal  being  accomplished  in  Illinois  and 
Wisconsin  through  statutory  enactment,  and  in  Arkansas,  Louisiana, 
and  Tennessee  through  court  decisions.  The  change  has  been  in 
the  other  direction  in  New  York  state  only.  A  previous  provision 
abolishing  common  law  marriages  was  omitted  in  1907  when  the 
act  containing  it  was  amended,  and  this  was  interpreted  as  restoring 
such  marriages.  In  two  states  where  the  status  of  such  alliances 
was  unknown  in  1904,  they  have  since  been  declared  invalid — in 
Arizona  by  statute  and  in  North  Dakota  by  judicial  decision, — 
and  in  one  state,  Oklahoma,  similarly  situated  at  that  time,  they 
have  been  pronounced  valid. 

2.    MARRIAGEABLE  AGE 

The  term  marriageable  age,  as  used  here,  refers  to  the  age  below 
which  a  marriage  may  not  be  contracted  even  with  the  consent  of 
parents.  If,  however,  a  marriage  is  contracted  below  the  specified 
age,  it  is  regarded  as  an  inchoate  or  imperfect  marriage,  in  a  few 
states  absolutely  void,  but  in  most  states  merely  voidable  or  capable 
of  being  declared  void  on  the  ground  of  non-age  on  suit  brought  for 
the  purpose.     In  the  latter  states  the  age  below  which  a  marriage 

^For  the  decision  on  which  this  classification  is  based,  see  page  15. 

32 


LAWS  BY  TOPICS 

is  regarded  as  an  absolute  nullity,  in  common  law,  appears  to  be 
seven  years.^ 

In  17  states  no  marriageable  ages  have  been  fixed  by  statute.  Fn 
nine  of  these — Florida,  Maine,  Maryland,  Massachusetts,  Missouri, 
Pennsylvania,  Rhode  Island,  Tennessee,  and  Vermont^the  com- 
mon law  marriageable  ages  of  14  for  males  and  12  for  females  have 
been  formally  recognized,  and  without  a  doubt  those  ages  hold 
good  also  in  Colorado,  Idaho,  and  Mississippi.  In  several  states 
included  in  the  above  count  as  having  no  statutory  provision  for  a 
marriageable  age  there  are  special  provisions  more  or  less  effective 
to  the  same  end.  Thus  it  is  unlawful  to  issue  a  license  to  a  male 
under  18  years  or  a  female  under  14  in  the  case  of  South  Carolina,^ 
or  to  females  under  15  in  the  case  of  Washington.  In  Louisiana 
celebrants  are  forbidden  to  solemnize  the  marriage  of  males  under 
14  or  females  under  12.  In  Connecticut,  if  either  party  applying  for 
a  license  is  under  16  years  of  age,  it  is  necessary  to  have  the  consent 
of  a  selectman  of  the  town  endorsed  upon  the  license.  In  Delaware 
if  the  male  is  under  18  or  the  female  is  under  16  and  the  marriage  is 
not  confirmed  after  reaching  those  ages,  the  non-aged  party  may 
obtain  a  divorce.  In  Florida  it  is  unlawful  to  contract  a  clandestine 
marriage  with  a  girl  under  16.  In  Vermont  it  is  stated  that  mar- 
riages below  16  years  of  age  may  be  annulled. 

In  the  states  where  marriageable  ages  have  been  established  by 
statute  the  most  usual  ages  are  18  for  males  and  16  for  females. 
The  ages  fixed  are  as  follows: 

Males  under      14 — Kentucky  and  New  Hampshire. 
15 — Kansas. 

16 — District  of  Columbia,  Iowa,  North  Carolina,  Utah,  and  Texas. 
17 — Alabama,  Arkansas,  and  Georgia. 

18 — All  other  states,  if  not  listed  above  as  having  no  marriageable 
age.' 
Females  under  12 — Kansas,  Kentucky,  and  Virginia. 
13 — New  Hampshire. 
.  14 — Alabama,  Arkansas,  District  of  Columbia,  Georgia,  Iowa, 
North  Carolina,  Texas,  and  Utah. 
15 — California,  Minnesota,  New  Mexico,  North  Dakota,  Okla- 
homa, Oregon,  South  Dakota,  and  Wisconsin. 
18— New  York. 

16 — All  other  states,  if  not  listed  above  as  having  no  marriageable 
age.' 
*  A  leading  authority  has  written  as  follows  in  regard  to  this  subject : 
"  If  both  parties  have  arrived  at  the  age  of  seven,  and  either  is  below  his  or  her 
[common  law]  age  of  consent — that  is  under  14  or  12 — or,  if  both  are,  they  may 

still  contract  an  inchoate  or  imperfect  marriage They  can  not 

avoid  or  annul  this  marriage  until  the  one  discarding  it  has  reached  the  age  of 
consent  for  such  party  ....  whether  it  be  12  or  14,  and  perhaps  not  until 
the  other  has  arrived  at  his  or  her  age  of  consent."  (Bishop,  J.  P.:  Marriage, 
Divorce  and  Separation,  Vol.  I,  Sections  572  and  573.) 

2  Since  a  license  in  South  Carolina  is  "essential  to  the  validity  of  a  marriage" 
these  ages  for  obtaining  a  license  are  inferentially  also  the  marriageable  ages. 
'  Regarding  the  inclusion  of  New  Jersey  in  this  group,  see  page  96  (3)  following. 

3  33 


AMERICAN  MARRIAGE  LAWS 

In  five  states  marriages  below  the  marriageable  age  are  declared 
to  be  void,  and  in  15  states  voidable  only.  The  five  states  in  the 
first  group  are  Michigan,  New  Mexico,  Ohio,  Utah,  and  Virginia. 
The  wording  of  the  Virginia  law  is  very  specific — "void  without 
legal  process  if  the  parties  separated  during  such  non-age  and  do 
not  cohabit  afterward."  New  Mexico  and  Ohio  use  the  term  "in- 
valid." In  Michigan  such  marriages  are  void  if  the  parties  have 
separated  by  mutual  consent  during  such  non-age,  or  if  the  non- 
aged party  elects  to  terminate  the  marriage  relation  before  arriving 
at  the  age  of  consent.  We  are  advised,  however,  that  in  practice 
legal  process  is  necessary  to  establish  the  facts  on  which  the  status  is 
thus  conditioned ;  hence  the  marriage  becomes  in  fact  voidable  only. 
The  15  states  in  which  such  marriages  are  voidable  only  are  Ala- 
bama, Arkansas,  District  of  Columbia,  Illinois,  Indiana,  Minnesota, 
Mississippi,  Nebraska,  New  Jersey,  New  York,  Oklahoma,  Oregon, 
West  Virginia,  Wisconsin,  and  Wyoming.  In  certain  states  the 
wording  is  that  these  marriages  are  void  from  the  time  their  nullity 
is  declared  by  a  court,  or  that  they  may  be  annulled  under  specified 
conditions. 

In  four  states — Arizona,  Ohio,  Oklahoma,  and  Michigan — there 
are  special  exceptions  to  the  statutes  establishing  the  marriageable 
ages.  In  Arizona  the  exception  applies  under  specified  circum- 
stances to  anyone  who  is  the  prospective  parent  of  a  child ;  in  Ohio 
to  cases  of  pregnancy;  while  in  Oklahoma  marriages  below  the 
specified  ages  may  be  authorized  by  the  court  in  settlement  of  suits 
for  bastardy  and  seduction;  and  in  Michigan  the  marriage  of  a 
female  below  the  marriageable  age  is  allowed  on  her  oath  before  a 
specified  judge  that  she  is  with  child,  which  if  born  before  her  mar- 
riage will  be  illegitimate,  or  that  she  is  living  with  a  man  and  has 
been  considered  as  his  wife,  or  for  other  good  reason  deemed  suffi- 
cient by  the  judge. 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement.  All  states  have  some  sort  of  a  license  provision, 
but  only  one  state,  Wisconsin,  has  followed  the  recommendation  of 
the  Commissioners  on  Uniform  Laws  in  declaring  that  no  marriage 
is  valid  unless  a  license  for  it  has  been  issued,  actually  or  con- 
structively,^ as  prescribed  by  law.  The  Mississippi  provision, 
mentioned  in  an  earlier  paragraph,  is,  however,  much  the  same.  It 
states  that  a  license  is  essential  to  the  validity  of  a  marriage. 
The  qualification  that  this  shall  not  invalidate  common  law  mar- 
riages does  not  seem  to  affect  the  status  of  the  license.  On  the 
other  hand,  the  South  Carolina  provision,  that  it  is  unlawful  to 
contract  marriage  without  a  license,  but  that  this  shall  not  "render 

*  For  the  conditions  under  which  a  license  is  thus  "deemed  "  to  have  been  issued, 
see  p.  22. 

34 


LAWS  BY  TOPICS 

any  marriage  illegal^  without  a  license,"  does  not  have  the  same 
effect. 

Most  states  merely  decree  that  marriages  shall  not  be  solem- 
nized without  a  license,  or  unless  a  license  has  been  obtained,  or 
has  been  issued,  or  has  been  produced  to  the  celebrant;  or  they 
put  the  implied  obligation  on  the  contracting  parties  by  declaring 
that  all  who  intend  to  marry  are  required  to  obtain  a  license.  Four 
states,  three  of  them  in  New  England,  declare  that  all  who  intend 
to  marry  must  apply  for  a  license  (file  a  "notice  of  intention"). 
In  Colorado  it  is  provided  merely  that  the  specified  official  shall 
have  authority  to  issue  a  license.  Very  similar  provisions  appear 
in  the  laws  of  Kansas  and  Louisiana.  In  only  one  state,  Maryland, 
is  any  penalty  provided  for  those  who  contract  marriage  without  a 
license  (or  without  the  publication  of  banns).  Such  persons  are 
subject  to  a  fine  of  $100.  It  is  clear  that  the  strength  of  the  license 
system  rests  not  on  the  provisions  which  require  a  license  for  lawful 
marriage,  but  on  the  provisions  summarized  under  4a  below,  which 
require  all  celebrants  to  demand  its  presentation. 

In  at  least  five  states — Illinois,  Indiana,  Iowa,  Kansas,  and  Minne- 
sota— members  of  the  Society  of  Friends,  or,  in  certain  states,  of 
other  religious  societies,  are  not  required  to  obtain  a  license.  In 
Illinois  this  exemption  is  conditioned  upon  a  week's  notice  to  the 
society's  standing  committee.  In  three  other  states — Georgia, 
Maryland,  and  Ohio — a  marriage  license  is  not  required  for  marriages 
preceded  by  the  publication  of  banns. 

b.  Where  the  license  is  obtained.  Marriage  licenses  are  issued 
by  a  variety  of  officials  in  the  different  states,  the  county  clerk  or 
the  clerk  of  the  county  court  being  the  one  ordinarily  specified.  In 
New  England  the  town  clerk  is  usually  the  issuing  official.  In  a 
few  states  probate  judges  are  given  this  authority. 

A  question  of  greater  importance  relates  to  the  territorial  juris- 
diction of  the  issuing  officer.  In  the  largest  number  of  states  the 
license  may  be  issued  by  the  specified  officer  of  the  county  (or  town) 
in  which  the  marriage  is  to  take  place,  quite  irrespective  of  the 
residence  of  the  contracting  parties.  The  15  states  in  which  this  is 
true  are  Arizona,  California,  Connecticut,  Illinois,  Iowa,  Maryland, 
Montana,  Nebraska,  New  Mexico,  North  Carolina,  Oklahoma, 
Pennsylvania,  South  Dakota,  Wisconsin,  and  Wyoming.  In  nine 
states — Arkansas,  Colorado,  Delaware,  Idaho,  Kansas,  Missouri, 
South  Carolina,  Texas,  aiid  Washington — there  is  even  less  restric- 
tion, for  the  license  may  be  issued  in  any  county  in  the  state.  In 
eight  states — Alabama,  Florida,  Georgia,  Indiana,  Mississippi,  Ohio, 
Oregon,  and  West  Virginia — the  license  must  be  issued  in  the  county 
in  which  the  female  resides.    Several  states  which  have  residence 

*  Interpreted  by  our  correspondent  in  South  Carolina  to  mean  "invalid." 

35 


AMERICAN  MARRIAGE  LAWS 

restrictions  allow  licenses  to  be  obtained  in  the  county  in  which  the 
marriage  is  to  take  place  in  the  case  of  marriages  involving  non- 
residents.i 

In  five  states  both  of  the  parties  are  obliged  to  appear  before  the 
issuer  of  licenses.  This  is  true  in  Arkansas,  New  Jersey,  New  York, 
Ohio  (with  an  exception  in  the  case  of  physical  disability),  and 
Rhode  Island.  In  Montana,  by  contrast,  the  application  may  be  made 
by  an  attorney  for  either  party,  and  in  New  Mexico  and  Wisconsin 
the  parties  may  make  the  required  affidavits  before  any  officer  au- 
thorized to  administer  oaths,  and  in  Pennsylvania  before  a  specified 
local  official,  and  he  shall  have  them  identified  (in  New  Mexico  and 
Wisconsin)  and  forward  their  statements  to  the  issuing  officer.  In 
most  states  the  intention  of  the  law  probably  is  that  at  least  one  of 
the  contracting  parties  shall  make  the  application  personally,  but 
usually  this  requirement  is  not  clearly  stated. 

In  Michigan,  by  a  special  act  **for  the  protection  of  the  reputa- 
tion and  good  name  of  certain  persons, "^  if  the  female  makes  affi- 
davit that  she  is  with  child  which  if  born  before  her  marriage  will 
be  illegitimate,  a  license  may  be  granted  by  a  specified  judge,  and 
the  usual  restrictions  as  to  age,  marriage  record,  etc.,  do  not  apply. 
The  judge  may  also  marry  the  couple  and  is  required  to  keep  the 
certificates  of  such  marriages  in  a  special  private  file. 

c.  Advance  notice,  objections,  etc.  Only  eight  states  require 
advance  notice  to  be  given  before  a  license  may  be  issued.  In  five 
of  them — Maine,  Massachusetts,  New  Hampshire,  New  Jersey,  and 
Wisconsin — all  applicants  must  give  such  notice,  but  in  the  remain- 
ing states — Connecticut,  Rhode  Island,  and  Vermont — the  require- 
ment applies  only  to  non-residents,  this  latter  term  being  restricted 
in  different  ways  in  each  of  the  three  states.  Five  days  is  the  period 
of  advance  notice  prescribed  except  in  the  case  of  New  Jersey,  where 
it  is  48  hours.  In  several  of  these  states  provision  is  made  for  an 
immediate  issuance  of  the  license  on  order  of  the  court  in  the  case  of 
immigrants  or  in  cases  of  emergency  due  to  physical  condition,  etc. 
Only  one  state,  Wisconsin,  provides  that  the  notice  shall  be  posted. 

In  but  two  of  the  eight  states,  Maine  and  Wisconsin,  is  there 
definite  provision  for  the  filing  and  hearing  of  objections.  By  the 
Maine  statute  any  person  may  file  a  "caution,"  and  the  issuer  shall 
then  withhold  the  license  until  a  decision  is  rendered  by  two  justices 
of  the  peace  approving  of  the  marriage.  In  Wisconsin  certain  speci- 
fied relatives  only,  or  a  guardian  of  either  applicant,  may  file  objec- 

*  Correspondents  in  several  states  where  licenses  must  be  obtained  in  the  place 
where  the  female  resides  explain  that  non-residents  of  the  state  obtain  licenses 
under  this  law,  for  it  is  assumed  when  they  make  application  that  they  are  resi- 
dents, the  law  not  specifying  how  many  days  are  required  to  obtain  residence. 

2Seepp.  34and83  (3b). 

36 


LAWS  BY  TOPICS 

tions.  If  the  court  finds  that  the  statements  in  the  appHcation  are 
wilfully  false  or  insufficient,  or  that  either  party  is  not  competent 
to  marry,  it  shall  issue  an  order  refusing  the  license.  In  Pennsyl- 
vania and  Virginia,  which  have  no  law  regarding  advance  notice, 
objections  are  provided  for,  and  a  procedure  is  established  for  their 
hearing  by  the  court.  For  states  which  provide  that  objections 
must  be  considered  by  the  celebrant  before  uniting  the  parties  in 
marriage  see  4d,  below. 

In  two  states  a  period  of  time  must  elapse  after  the  issuance  of  the 
license  before  the  marriage  may  be  performed.  In  Delaware  there 
must  be  a  period  of  at  least  24  hours,  and  if  both  parties  are  non- 
residents, of  at  least  96  hours;  in  New  Jersey  it  is  24  hours  for  all 
applicants,  except  that  in  case  of  arrest  on  certain  criminal  charges 
the  marriage  may  be  performed  immediately.  In  states  in  which 
publication  of  banns  is  allowed  in  place  of  obtaining  a  license,  as 
shown  under  3a,  above,  there  exists  for  those  whose  banns  are  pub- 
lished a  required  period  of  delay  before  the  marriage  ceremony  may 
be  performed. 

d.  Parental  consent.  Every  state  requires  the  consent  of  the 
parent,  guardian,  etc.,  either  for  the  issuance  of  a  certificate  or  for 
the  marriage  of  females  under  certain  specified  ages,  and  all  states 
except  Georgia  and  Michigan  have  a  corresponding  requirement 
regarding  males.  Eight  states — Alabama,  California,  Florida, 
Kentucky,  Minnesota,  Nevada,  Ohio,  and  Utah — waive  this  require- 
ment if  the  minor  has  been  previously  married.  The  ages  established 
vary  considerably,  as  is  shown  in  the  following  list,  but  the  pre- 
dominating ages  are  21  for  males  and  18  for  females. 

Males  under     16 — Tennessee. 

18 — Idaho,  North  Carolina,  New  Hampshire,  and  South  Carolina. 
21 — All  other  states  (except  Georgia  and  Michigan). 

Females  under  16 — Maryland,  New  Hampshire,  and  Tennessee. 

21 — Connecticut,   Florida,    Kentucky,   Louisiana,   New    Mexico, 

Pennsylvania,  Rhode  Island,  Virginia,  West  Virginia,  and 

Wyoming. 
18— All  other  states. 

In  no  state  is  any  evidence  required,  other  than  an  affidavit,  for 
the  assurance  of  the  issuer  of  licenses  that  the  applicant  has  in  fact 
reached  the  age  for  marriage  without  parental  consent.  In  Alabama, 
Kansas,  Massachusetts,  and  Mississippi  the  applicant  himself  or 
herself  may  make  the  affidavit.  The  Alabama  provision  is  typical ; 
the  forfeit  upon  one  who  issues  a  certificate  without  the  required 
consent  is  not  recoverable  if  an  affidavit  was  made  by  the  minor  or 
some  other  credible  person  that  the  minor  was  of  the  required  age. 
In  Louisiana  also  the  applicants  must  furnish  proof,  presumably  of 
their  age,  and  in  Rhode  Island  they  must  make  oath  to  the  facts.. 

37 


AMERICAN  MARRIAGE  LAWS 

In  Indiana,  North  Dakota,  and  Oregon  the  affidavit  must  be  made 
by  some  other  person.  In  Florida  the  issuer  must  merely  require 
satisfactory  evidence,  and  in  North  Carolina  he  must  make  reason- 
able inquiry.  In  Illinois  it  is  the  parent  who  is  to  make  the  affidavit 
as  to  the  age  of  the  minor  and  to  give  such  other  proof  as  the  clerk 
may  require.  In  Georgia  the  issuer  must  inquire  as  to  the  ages  of  the 
applicants,  and  if  there  is  any  ground  for  suspicion  that  the  female 
is  under  the  specified  age,  must  refuse  to  grant  the  license  without 
parental  consent. 

In  certain  states — presumably  for  the  sake  of  assurance  that  the 
parents  have  actually  given  their  consent — it  is  provided  that  there 
must  be  witnesses  to  the  signature,  or  in  some  cases  an  acknowledg- 
ment of  the  document.  The  states  in  which  substantially  this 
requirement  appears  are  Alabama,  Delaware,  District  of  Columbia, 
Iowa,  Kansas,  Kentucky,  Maryland,  Minnesota,  Mississippi, 
Montana,  Nebraska,  Nevada,  New  Jersey,  North  Dakota,  Ohio, 
Pennsylvania,  Utah,  Virginia,  West  Virginia,  and  Wyoming. 

In  20  states  no  specific  penalty  is  prescribed  for  an  official  who 
issues  a  certificate  to  a  minor  below  the  specified  ages  without 
requiring  parental  consent.  These  states  are  Arkansas,  California, 
Delaware,  District  of  Columbia,  Florida,  Louisiana,  Michigan, 
Missouri,  Montana,  Nebraska,  Nevada,  New  Jersey,  Pennsylvania, 
Rhode  Island,  South  Carolina,  Texas,  Colorado,  Idaho,  Maryland, 
and  New  Mexico.  In  the  four  last  named  states,  however,  the  cele- 
brant is  subject  to  a  penalty  if  he  performs  a  ceremony  in  such  cases. 

e.  Form  of  license.  The  form  and  contents  of  the  license  are  usually 
prescribed.  It  is  usually  also  stated  that  the  license  shall  authorize 
the  solemnization  of  the  marriage  of  the  parties  named  by  anyone 
who  has  the  general  authority  to  do  so.  Some  such  form  is  implied 
in  the  word  license  and  seems  to  be  followed  everywhere,  though  in  a 
few  states  it  is  not  prescribed  explicitly  in  the  law.  Aside  from  these 
fundamental  features  the  facts  which  the  license  must  contain,  and  in 
each  case  the  number  of  states  requiring  the  specified  fact,  are  as 
follows : 

Parties'  residences  (23) 
Ages  (16) 
Race  or  color  (13) 
Birthplaces  (10) 
Names  of  parents^  (10) 
Marital  condition  (9) 
A  statement  tliat — 

Parental  consent  has  been  given,  if  required  (6) 

No  legal  impediment  exists  (3) 

Parties  are  free  from  certain  diseases  (1) 
Name  of  the  parent  giving  consent,  if  required  (1) 

1  In  three  states  called  "parentage,"  and  in  three  other  states  it  is  the  mother's 
maiden  name  that  must  be  given. 

38 


LAWS  BY  TOPICS 

Occupation  of  the  prospective  husband  (4) 

Occupation  of  each  party  (3) 

Manner  in  which  a  previous  marriage,  if  any,  has  been  dissolved  (3) ' 

Probable  date  of  the  marriage  (3) 

Probable  place  of  the  marriage  (3) 

Probable  celebrant,  the  license  being  addressed  to  him  (2) 

Probable  celebrant  (1) 

Relationship,  if  any,  of  the  contracting  parties  (1) 

Maiden  name  of  the  prospective  bride,  in  case  she  is  a  widow  (1) 

Date  when  the  marriage  must  be  reported  to  the  issuer  of  the  license  (1)  1 

Penalty  established  for  a  failure  to  report  the  marriage  (1) 

f.  Record  of  license.  There  are  explicit  provisions  calling  for 
a  record  of  the  license  on  the  part  of  the  issuer  in  all  states  except 
California,  Idaho,  Illinois,  Kentucky,  Massachusetts,  and  Nevada, 
where  there  is  no  such  provision,  and  Colorado,  South  Carolina,  and 
Utah,  where  the  provision  apparently  does  not  cover  all  licenses  that 
are  issued,  and  Connecticut  and  New  Jersey,  where  there  is  only  an 
indirect  provision  for  the  record  through  a  form  of  license  established 
by  some  state  official.  In  most  of  the  states  where  such  a  require- 
ment exists  no  penalty  is  prescribed  for  failure  to  make  the  record. 
The  exceptional  states  in  this  particular  are  Alabama,  Missouri,  New 
York,  North  Carolina,  North  Dakota,  Pennsylvania,  Virginia,  and 
Wisconsin. 

g.  Life  of  license.  In  all  but  a  very  few  states  the  license,  once 
issued,  is  good  at  any  future  time  for  the  marriage  of  the  parties 
named.  In  eight  states,  however,  the  life  of  the  license  is  limited. 
These  states,  and  the  period  during  which  the  license  is  good,  are  as 
follows:  New  Jersey,  Oklahoma,  and  Wisconsin,  30  days;  Arkansas, 
North  Carolina,  and  Pennsylvania,  60  days;  Massachusetts,  six 
months.  In  Missouri  the  life  of  the  license  is  indirectly  limited  by 
the  provision  that  it  must  be  returned  to  the  official  who  issued  it 
within  90  days  after  its  issuance. 

h.  Other  requirements  and  prohibitions.  Nineteen^  of  the  49 
states  have  no  restrictions  upon  the  marriage  of  persons  suffering 
from  physical  or  mental  disabilities.  Usually  these  restrictions  are 
expressed  as  prohibitions  upon  the  issuance  of  the  license  to  the 
classes  of  persons  specified,  but  in  14  states^  the  marriage  of  such 
persons  is  merely  prohibited  or  their  marriage  contract,  if  made,  is 
declared  void.     Provisions  of  the  latter  sort,  which  are  classified 

^  These  are  Arizona,  Arkansas,  Colorado,  Florida,  Idaho,  Iowa,  Louisiana, 
Maryland,  Mississippi,  Missouri,  Montana,  Nevada,  New  Mexico,  North  Carolina, 
Oklahoma,  South  Dakota,  Tennessee,  Texas,  and  Wyoming.  In  Iowa  and  South 
Dakota  indirect  restriction  upon  the  issuance  of  licenses  to  those  disabled  men- 
tally may  be  read  into  the  provision  that  the  clerk  is  forbidden  to  issue  a  marriage 
license  when  either  party  is  disqualified  from  making  any  other  civil  contract. 

2  Connecticut,  District  of  Columbia,  Georgia,  Illinois,  Kentucky,  Maine, 
Massachusetts,  Michigan,  Minnesota,  Nebraska,  Rhode  Island,  South  Carolina, 
Utah,  and  West  Virginia. 

39 


AMERICAN  MARRIAGE  LAWS 

under  (7) ,  following,  are  of  course  more  difficult  of  enforcement,  for 
the  burden  of  disqualifying  the  specified  groups  is  not  placed  with 
definiteness  upon  any  public  official.  It  is  true,  however,  that  in 
many  states  the  issuer  of  the  license  must  satisfy  himself  that  there 
is  no  impediment  to  the  marriage,  and  thus  indirectly  become 
responsible  for  the  enforcement  of  the  prohibitions  referred  to. 

As  a  matter  of  practice  the  effectiveness  of  the  two  types  of 
restrictions  may  not  be  very  different,  for  where  the  license  clerk  is 
definitely  forbidden  to  issue  a  license  to  the  classes  named  it  is 
usually  specified  or  implied  that  the  facts  shall  be  established  merely 
by  affidavits.  Thus  in  Delaware,  Indiana,  Ohio,  Pennsylvania,  and 
Washington  the  applicants  themselves  swear  to  the  fact  that  they 
have  none  of  the  disabilities  their  laws  specify,  and  in  New  York 
and  Virginia  their  oath  refers  only  to  their  freedom  from  venereal 
disease.  In  New  Jersey  the  oath  of  a  witness  is  required  in  addition, 
but  in  the  laws  of  California,  Kansas,  and  Vermont  no  method  of 
establishing  the  necessary  facts  is  stated.  In  only  four  states — 
Alabama,  North  Dakota,  Oregon,  and  Wisconsin — is  there  any 
requirement  that  freedom  from  the  specified  physical  or  mental  dis- 
abilities shall  be  established  by  physicians'  certificates,^  though  certi- 
fication by  a  physician  may  be  required  in  the  discretion  of  the  issuer 
of  licenses  in  New  Hampshire  and  Virginia  regarding  mental  dis- 
orders. In  North  Dakota  the  physician's  affidavit  merely  states 
that  the  applicant  is  free  from  the  specified  ailments;  in  Oregon  it  is 
provided  that  the  affidavit  must  be  made  not  more  than  10  days 
prior  to  the  application  for  the  license;  and  in  Alabama  and  Wis- 
consin all  males  must  be  examined  regarding  venereal  disease  not 
more  than  15  days  prior  to  their  application,  and  the  physicians* 
certification  on  that  point  is  to  be  based  on  the  examinations  so 
made.  In  Michigan  where  there  is  merely  the  general  provision 
forbidding  the  marriage  of  those  with  specified  disabilities,  there  is 
also  the  requirement  that  physicians'  certificates  shall  establish  the 
facts.  In  Vermont  this  applies  only  to  venereal  disease,  and  in 
Michigan  to  all  specified  disabilities  except  venereal  disease.  The 
wording  of  the  Vermont  law  is  unusual.  The  marriage  of  any  person 
is  forbidden  who  has  been  told  by  a  physician  that  he  or  she  is 
afflicted  with  gonorrhoea  or  syphilis,  without  a  physician's  certifica- 
tion of  freedom  from  such  disease. 

In  five  states  all  or  part  of  the  restrictions  for  physical  or  mental 
reasons  do  not  apply  to  females  above  45  years  of  age.  The  imbecile 
and  insane  are  named  in  most  of  the  restrictive  laws  and  the  epileptic 
and  feeble-minded  almost  as  often.  Where  the  burden  of  enforce- 
ment is  definitely  placed  upon  the  issuer  of  licenses,  a  part  of  the 
formula  ordinarily  is  that  no  license  shall  be  issued  to  a  person  who 

*  For  the  issuance  of  a  license. 
40 


LAWS  BY  TOPICS 

at  the  time  of  application  is  under  the  influence  of  intoxicating 
liquor  or  a  narcotic  drug.  Four  states — Indiana,  New  Jersey, 
Pennsylvania,  and  Vermont — ^with  certain  exceptions,  disqualify 
paupers  or  inmates,  or  in  some  cases  former  inmates,  of  public 
institutions  for  the  indigent.  Indiana  and  Pennsylvania  include  in 
their  lists  those  suffering  from  any  transmissible  disease.  North 
Dakota  includes  drunkards,  Ohio  habitual  drunkards,  and  Wash- 
ington "common  drunkards."  Washington  and  North  Dakota  also 
include  those  suffering  from  tuberculosis  in  its  advanced  stages. 
North  Dakota,  Virginia,  and  Washington  have  disqualified  habitual 
criminals.  The  most  recent  restrictions  relate  to  the  venereal  dis- 
eases. Nine  states  mention  them.  In  Alabama,  Michigan,  New 
York,  Vermont,  Virginia,  and  Wisconsin,  both  sexes  are  included 
(though  the  requirements  regarding  examination  in  Alabama  and 
Wisconsin  apply  only  to  males),  but  in  North  Dakota,  Oregon, 
and  Washington  the  restriction  relates  only  to  males. 

In  addition  to  the  physical  and  mental  restrictions  upon  the 
issuance  of  licenses,  we  have  summarized  under  this  general  heading 
the  other  miscellaneous  obligations  placed  upon  the  issuer  of  the 
license.  In  most  states  he  must  ascertain  a  variety  of  facts,  some  of 
which,  for  some  states,  are  to  be  entered  upon  the  license  and  so  are 
shown  under  3e  above.  In  21  states  he  must  assure  himself  that  no 
legal  impediment  exists,  or  must  be  assured  of  "the  legality  of  the 
marriage,"  or  of  "the  competency  or  qualifications  of  the  parties  to 
marry,"  etc.  There  are  also  penalties  to  which  an  issuer  is  subject 
for  issuing  a  license  for  miscegenetic  marriages  or  issuing  licenses  in 
any  way  contrary  to  law,  and  penalties  to  be  imposed  upon  any  one 
who  swears  falsely  to  any  fact  in  connection  with  the  obtaining  of  a 
marriage  license. 

4.  SOLEMNIZATION 

a.  The  celebrant.  In  all  states  except  Maryland,  where  civil 
marriages  are  not  allowed,  marriages  may  be  solemnized  by  both 
religious  and  civil  celebrants.  In  most  states  the  persons  who  may 
officiate  are  specified  by  law;  but  in  Maryland,^  Pennsylvania,  and 
West  Virginia  there  is  no  specification.  Apparently  anyone  may 
perform  the  marriage  ceremony  in  the  two  latter  states,  and  in 
Maryland  also,  if  it  is  a  religious  ceremony. 

Many  different  civil  officials  are  specified.  Most  states — all 
except  Delaware,  Florida,  Maryland,  New  Jersey,  New  Mexico, 
Oregon,  Pennsylvania,  Rhode  Island,  South  Carolina,  Virginia,  and 
West  Virginia^ — include  not  only  their  higher  judicial  officers  but 

^For  an  indirect  specification  in  the  Maryland  law,  see  p.  79  (4a). 

2  In  Kentucky,  Massachusetts,  and  New  York  justices  of  the  peace  may  solem- 
nize marriages  but  under  decided  territorial  and  other  restrictions.  See  the 
summary  of  the  laws  of  these  states  in  Part  III. 

41 


AMERICAN  MARRIAGE  LAWS 

their  justices  of  the  peace  as  well .  In  eight  states  any  alderman  may 
join  people  in  marriage.  These  are  Colorado,  Connecticut,  Georgia, 
Kansas,  Nebraska,  Tennessee,  Wisconsin,  and  Wyoming.  In  four 
states — California,  New  Jersey,  New  York  and  Wisconsin — any 
police  court  judge  may  officiate.  In  Florida  and  Maine  any  notary 
public  may  perform  the  ceremony,  and  in  South  Carolina  the  list 
includes  any  officer  authorized  to  administer  oaths.  A  few  states 
allow  their  governors  or  mayors  to  share  in  this  function,  and  two 
states  provide  that  persons  may  be  specially  appointed  for  the  pur- 
pose— in  Virginia  by  the  court  and  in  Maine  by  the  governor.  In 
the  latter  case  it  is  specified  that  women  may  be  appointed. 

In  34  states  there  is  no  official  list  of  those  authorized  to  solemnize 
marriage  according  to  religious  rites.  The  provision  of  the  Iowa  law 
is  representative  of  the  largest  group  of  states:  The  marriage  cere- 
mony may  be  performed  by  any  minister  of  the  gospel,  ordained  or 
licensed  according  to  the  usages  of  his  denomination,  or  it  may  be 
performed  by  any  denomination  having  peculiar  methods  of  entering 
the  marriage  relation.  In  Delaware  and  Pennsylvania,  however,  all 
religious  celebrants  must  report  their  names  and  residences  to  a 
specified  official,  who  shall  register  them.  If  the  celebrant  moves 
to  another  place  he  must  report  that  fact  within  30  days.  Oklahoma 
has  gone  farther,  requiring  all  religious  celebrants  to  file  their 
credentials.  In  Oregon  the  credentials  must  be  ''approved"  and 
then  rect)rded.  In  eight  other  states — Arkansas,  District  of  Colum- 
bia, Maine,  Minnesota,  Nevada,  Ohio,  Rhode  Island,  and  Wisconsin 
— each  religious  celebrant  must  obtain  a  clergyman's  certificate  or 
license.  In  Kentucky,  Virginia,  and  West  Virginia  he  must  give 
bond  for  the  proper  performance  of  his  duties. 

In  all  but  nine  states  a  minister  from  any  part  of  the  United  States 
may  apparently  solemnize  a  marriage.  In  a  few  states  this  wide 
range  of  authority  is  explicitly  given.  Thus  in  Louisiana  any 
minister  of  the  gospel  or  priest  of  a  religious  sect  qualifies  as  a  cele- 
brant whether  he  is  a  citizen  of  the  United  States  or  not.  Ordinarily, 
however,  there  is  no  reference  to  the  territorial  bounds  of  authority. 
The  nine  exceptional  states  which  limit  solemnization  to  ministers 
of  the  state  are  Indiana,  Massachusetts,  Michigan,  Missouri, 
Nevada,  New  Hampshire,  Ohio,  Vermont,  and  Washington. 

In  a  number  of  states  it  is  provided  that  the  clergyman  must  be 
"in  regular  communion"  or  "in  regular  standing"  in  his  denomina- 
tion, or  that  he  must  be  one  who  continues  in  the  work  of  the 
ministry.  An  interesting  requirement  was  added  to  the  Massa- 
chusetts laws  a  few  years  ago  to  the  effect  that  no  one  may  legally 
solemnize  marriage  who  is  unable  to  read  and  write  in  the  English 
language. 

b.  Presentation  of  the  license.    The  effectiveness  of  the  marriage 

42 


LAWS  BY  TOPICS 

license  system  depends  largely  upon  the  requirement  that  a  license 
must  be  presented  to  the  celebrant  before  a  marriage  ceremony  can 
legally  be  performed.  Such  a  requirement  appears  explicitly  in  all 
states  except  Iowa,  Nebraska,  and  Wyoming,  though  in  three  states — 
Arkansas,  Minnesota,  and  Washington — it  has  to  be  implied  from 
certain  general  provisions  or  penalties.  In  the  three  states  in  which 
publication  of  banns  is  allowed  as  a  substitute  for  obtaining  a  mar- 
riage license,^  there  is,  of  course,  no  general  requirement  that  a 
license  must  be  presented. 

The  importance  attached  to  this  provision  is  indicated  in  the 
penalties  established  for  its  violation.  In  Alabama  any  one  who 
solemnizes  a  marriage  without  requiring  a  license  is  to  be  fined 
$1,000,  and  in  six  other  states — California,  Kansas,  Kentucky, 
Louisiana,  Rhode  Island,  and  Utah — the  fine  may  be  as  large  as  that. 
In  13  states  it  may  be  $500.  In  California,  Michigan,  Pennsylvania, 
and  Wisconsin,  it  must  be  at  least  $100,  while  in  only  one  state, 
Vermont,  may  the  special  penalty  for  this  offense  be  as  small  as  $10. 
In  13  states  the  clergyman  or  civil  celebrant  who  is  found  guilty  may 
be  imprisoned.  In  seven  of  the  latter — California,  Kentucky,  New 
York,  Utah,  Virginia,  West  Virginia,  and  Wisconsin — the  period  of 
imprisonment  may  be  one  year.  In  California,  Delaware,  Kentucky, 
Nevada,  New  Jersey,  Utah,  West  Virginia,  and  Wisconsin,  a  fine 
may  be  imposed  and  the  guilty  celebrant  imprisoned  also.  The  seven 
states  in  which  the  desirability  of  guarding  this  provision  against 
violation  through  some  special  penal  provision  has  apparently  not 
been  recognized  are  Arizona,  Florida,  Mississippi,  Montana,  New 
Mexico,  South  Dakota,  and  Tennessee. 

c.  Form  of  ceremony.  In  19  states  no  special  form  of  ceremony 
is  provided  for.  Probably  the  most  important  provision  in  the  laws 
of  the  other  states  is  that  relating  to  witnesses.  In  20  states  wit- 
nesses are  required  for  all  marriages,  and  in  two  other  states — 
Colorado  and  New  Mexico — the  form  of  certificate  established  by 
law  provides  for  witnesses.  In  California  and  Illinois  witnesses  are 
required  in  the  case  of  marriages  without  a  celebrant.  In  14  states 
there  must  be  a  declaration  that  the  contracting  parties  take  each 
other  as  husband  and  wife. 

d.  Other  requirements  and  prohibitions.  It  is  clear  from  the 
provisions  summarized  under  this  heading  that  our  laws  do  not  rely 
entirely  upon  the  issuer  of  licenses  to  make  sure  that  no  improper 
marriages  are  performed.  In  all  but  five  states — Connecticut, 
District  of  Columbia,  Mississippi,  Missouri,  and  Texas — there  are 
special  requirements,  prohibitions,  etc.,  relating  to  the  celebrant  in 
addition  to  the  general  one  that  he  must  require  the  presentation  of 
a  marriage  license.    The  restriction  most  frequently  imposed  is  that 

^  See  3a,  above,  p.  35. 
43 


AMERICAN  MARRIAGE  LAWS 

he  shall  not  perform  a  ceremony  where  the  marriage  would  be  con- 
trary to  the  marriage  law,  or  where  the  persons  are  forbidden  by  law 
to  marry,  or  where  he  has  knowledge  of  legal  impediments,  the  per- 
sons being  prohibited  from  marrying,  or  incapable  of  marrying,  or 
suffering  from  a  disability  which  renders  the  marriage  contract 
illegal.  Twenty  states  have  provisions  phrased  along  one  or  more 
of  the  above  mentioned  lines.  Fifteen  states  definitely  forbid  the 
solemnization  of  a  miscegenetic  marriage,  and  in  10  states  incestuous 
marriages  are  similarly  mentioned.  In  nine  states  also  the  celebrant 
must  be  assured,  if  the  contracting  parties  are  under  the  specified 
ages,  that  parental  consent  has  been  given.  In  Delaware,  Georgia, 
Kansas,  Minnesota,  New  Hampshire,  North  Dakota,  South  Dakota, 
Virginia,  Washington,  Wisconsin,  and  Wyoming  the  celebrant 
must  not  solemnize  the  marriage  of  mental  defectives.  In  Kansas, 
however,  this  prohibition  does  not  apply  to  females  over  the  age 
of  forty-five.  Other  states  mention  physical  defectives,  epileptics, 
etc. 

In  several  states  the  celebrant  is  made  responsible  for  certain 
administrative  features.  Thus  in  Delaware  he  must  not  solemnize 
a  marriage  unless  the  prescribed  number  of  hours  have  elapsed 
since  the  issuance  of  the  license,  and  in  Vermont  a  similar  restriction 
is  imposed  in  the  case  of  non-residents.  Massachusetts  seems  to  be 
the  only  state  in  which  the  celebrant  is  definitely  forbidden  to 
solemnize  marriages  after  the  license  of  the  contracting  parties  has 
expired. 

5.    THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution.  In  every  state  the  cele- 
brant is  obliged  to  send  a  report  of  the  marriages  he  solemnizes  to 
some  public  official — usually  to  an  official  of  the  county  or  township. 
In  most  states  this  report  must  be  made  within  30  days,  but  in 
California,  Indiana,  and  Wisconsin  three  days  is  specified;  in  Dela- 
ware four  days,  in  New  Jersey  five  days,  and  in  Maine  and  New 
Hampshire  six  days  (with  a  longer  time  allowed  in  the  latter  states, 
and  in  Wisconsin  in  case  of  residents  marrying  elsewhere).  On 
the  other  hand,  a  report  is  not  required  until  within  60  days  in 
North  Carolina,  Texas,  and  West  Virginia.  No  time  whatever  is 
stated  in  Arkansas  and  Georgia,  and  in  Oklahoma  the  report  is  to 
be  made  "without  delay." 

In  most  states  the  report  of  marriages  performed  is  made  to  the 
official  who  issued  the  license.  In  some  states  a  report  is  made  to 
the  corresponding  official  in  the  county  (or  town)  in  which  the 
marriage  was  performed.  As  a  result,  the  issuing  official  does  not 
automatically  receive  reports  regarding  all  marriages  performed  on 
the  licenses  he  has  issued.    This  difficulty  has  been  met  in  a  few 

44 


LAWS  BY  TOPICS 

States  by  a  provision  that  under  such  circumstances  the  official  in 
the  place  of  solemnization  must  send  a  copy  of  the  certificate 
he  receives  to  the  issuing  official  in  the  party's  place  of  resi- 
dence. 

b.  Local  record.  With  the  sole  exception  of  New  Jersey,  where 
the  omission  seems  to  have  been  unintentional,  all  states  provide 
that  the  marriage  certificate  shall  be  recorded  by  the  proper  local 
official  in  the  county  or  town  when  it  has  been  returned  to  him  by 
the  celebrant.  In  26  states,  however,  no  specific  penalty  has  been 
provided  for  failure  to  make  this  important  record,  or  to  provide 
any  general  penalty  which  seems  applicable.^ 

In  nine  states  there  are  special  provisions  intended  to  insure  com- 
plete recording.  Thus  in  Connecticut,  New  Hampshire,  New  Jer- 
sey, Rhode  Island,  and  Vermont,  when  the  specified  official  receives 
a  certificate  of  a  marriage  performed  within  his  jurisdiction,  and 
either  of  the  parties  is  a  resident  of  another  jurisdiction,  he  shall 
send  a  copy  of  the  certificate  to  the  proper  official  in  the  other  juris- 
diction. In  Maine  it  is  provided  that  the  issuing  official  shall  en- 
force the  provisions  relating  to  the  return  of  the  marriage  certificate 
so  far  as  is  possible;  in  Mississippi  he  must  examine  the  records 
once  a  month,  and  if  any  celebrant  is  found  in  default  he  shall  insti- 
tute inquiry  and  issue  a  summons  requiring  the  return  of  the  certifi- 
cate; in  Missouri  he  is  required  to  certify  the  list  of  delinquents  to 
the  grand  jury,  and  is  subject  to  a  penalty  for  failing  to  do  so;  and 
in  West  Virginia  the  assessor  of  the  county  is  required  to  make 
inquiry  of  all  persons  assessed  by  him,  and  report  any  not  shown  in 
the  marriage  indices.  He  is  subject  to  a  penalty  for  failing  to  do 
this,  and  persons  who  refuse  to  give  him  the  desired  information 
on  request  are  also  subject  to  a  penalty. 

In  Maryland  the  issuing  official  is  required  to  keep  a  "Foreign 
marriage  record  book,"  and  to  enter  in  it  all  certificates  of  marriage 
contracted  in  other  states  when  one  or  both  of  the  parties  are  citizens 
of  Maryland. 

c.  State  record.  In  20  states  the  local  record  of  marriages  re- 
ferred to  in  the  preceding  paragraph  is  the  only  record  required  by 
law.  The  states  which  thus  require  no  state  registration  of  mar- 
riages are  Arizona,  Colorado,  Florida,  Georgia,  Kentucky,  Minne- 
sota, Mississippi,  Missouri,  Montana,  Nevada,  New  Mexico,  North 
Carolina,  North  Dakota,  Ohio,  Oklahoma,  South  Carolina,  Ten- 
nessee, Texas,  Utah,  and  Wyoming. 

^  These  states  are  Delaware,  District  of  Columbia,  Florida,  Georgia,  Indiana, 
Iowa,  Kentucky,  Maine,  Maryland,  Massachusetts,  Mississippi,  Ohio,  Oklahoma, 
Oregon,  Rhode  Island,  South  Carolina,  South  Dakota,  Tennessee,  Texas,  Utah, 
Vermont,  and  Washington;  and  Arkansas,  California,  Colorado,  and  Missouri, 
where  penalties  are  provided  for  making  a  false  record  but  no  penalties  for  failing 
to  make  any  record. 

45 


AMERICAN  MARRIAGE  LAWS 

In  Pennsylvania  responsibility  for  the  registration  is  placed  upon 
the  state  registrar,  but  in  all  other  states  the  local  official  is  required 
to  make  reports  to  the  state  official.  The  eight  states  in  which 
annual  reports  are  required  are  Illinois,  Iowa,  Louisiana,  Massa- 
chusetts, Nebraska,  Rhode  Island,  Virginia,  and  West  Virginia. 
Quarterly  reports  are  required  in  five  states — Delaware,  Idaho, 
Michigan,  New  York,  and  Washington — and  monthly  reports  in  the 
remaining  14  states. 

Most  of  the  27  states  in  which  reports  to  a  state  officer  are  re- 
quired impose  a  penalty  on  the  official  who  fails  to  comply  with  the 
law  on  this  point.  The  13  states  in  which  no  specific  penalty  ap- 
pears, and  no  general  penalty  which  seems  applicable,  are  Alabama, 
Arkansas,  Idaho,  Illinois,  Indiana,  Iowa,  Michigan,  New  Jersey, 
New  York,  Rhode  Island,  South  Dakota,  Washington,  and  Wis- 
consin. 

6.    INTER-STATE  RELATIONS 

Twelve  states  have  laws  to  the  effect  that  a  marriage  valid  "where 
contracted"  is  valid  in  the  states  in  question.^  These  states  are 
Kansas,  Kentucky,  Montana,  Nebraska,  New  Mexico,  North  Da- 
kota, South  Dakota,  Utah,  and  Wyoming,  and  also  California,  Colo- 
rado, and  Idaho,  in  which  three  states  the  law  relates  only  to  "the 
country  where  contracted."  In  Kansas  and  Montana  also  it  is 
subject  to  certain  exceptions.  Under  such  a  law,  which  merely 
embodies  a  general  rule  of  international  (or  inter-state)  law,  it 
appears  that  two  classes  of  persons  may  be  covered — residents  of 
a  state  who  marry  there  and  later  become  residents  of  another  state, 
and  residents  of  a  state  who  go  to  another  state  for  the  mere  purpose 
of  marriage.  For  the  first  group  the  above  mentioned  law  merely 
confirms  a  generally  recognized  right.  To  the  second  group,  how- 
ever, this  law  or  general  rule,  as  interpreted  in  some  states,  gives 
legal  sanction  to  marriages  contracted  in  other  states  for  the  purpose 
of  evading  certain  at  least  of  the  laws  of  one's  own  state  of  residence 
— the  so-called  "Gretna  Green  marriages."  In  Kentucky  the 
provision  is  specifically  limited  to  this  second  group — residents  of 
Kentucky  who  marry  in  another  state. 

1  For  a  full  discussion  of  this  question  see  the  Proceedings  of  the  Commissioners 
on  Uniform  State  Laws,  1912,  p.  126.  According  to  a  recognized  authority  ''the 
validity  of  a  marriage  is  determined  by  the  law  of  the  place  where  it  was  contracted 
or  celebrated,  and  if  valid  there  it  will,  generally,  be  held  valid  in  any  state  or 
country  in  which  the  parties  may  subsequently  reside,  although  it  would  have  been 
invalid  by  the  law  of  such  subsequent  domicile  if  contracted  there,  and,  according 
to  some  authorities,  even  where  the  parties  left  the  state  of  their  domicile  and  went 
to  a  foreign  state  or  country  and  were  there  married,  for  the  purpose  of  evading 
the  restrictions  of  the  laws  of  their  domicile."  (Mack,  William;  Encyclopedia  of 
Law  and  Procedure,  Vol.  26,  p.  829.     The  American  Law  Book  Co.,  1907.) 

46 


LAWS  BY  TOPICS 

The  danger  to  a  state's  own  standards,  inherent  in  such  a  law — 
or  such  a  general  rule  of  legal  interpretation  where  there  is  no  such 
law — is  apparent.  To  avoid  that  danger,  in  the  latter  cases,  14 
states  have  passed  special  laws  known  usually  as  "marriage  eva- 
sions acts."  Most  of  these  provide  that  all  marriages  are  void  if 
contracted  by  residents  of  the  state  who  intend  to  remain  so  and  who 
go  to  another  state  for  the  purpose  of  marriage,  provided  they 
would  be  void  in  the  parties'  own  states  of  residence.  Sometimes, 
however,  the  provision  relates  only  to  marriages  for  the  evasion  of 
certain  specified  restrictions.  Thus  in  Missouri  it  applies  only  to 
bigamous  marriages;  in  Mississippi  it  applies  only  to  incestuous  and 
miscegenetic  marriages;  in  Maine  to  bigamy,  incest,  and  the  mar- 
riage of  mental  defectives;  in  Virginia  to  miscegenetic  and  inces- 
tuous marriages;  in  West  Virginia  to  these  and  also  to  bigamous 
marriages,  or  the  marriage  of  an  insane  or  physically  incapable 
person  or  person  under  the  age  of  consent.  In  the  nine  other 
states  in  this  group — Arizona,  District  of  Columbia,  Georgia,  Illi- 
nois, Indiana,  Louisiana,  Massachusetts,  Vermont,  and  Wisconsin 
— the  provisions  relating  to  evasion  are  general. 

7.  CERTAIN  OTHER  PROHIBITIONS 

The  most  important  prohibitions  summarized  under  this  heading 
— prohibitions  relating  to  physical  or  mental  disabilities — have 
been  referred  to  for  convenience  in  an  earlier  paragraph.  In  addi- 
tion there  are  prohibitions  in  28  states  relating  to  miscegenetic  mar- 
riages.^ In  Alabama,  Massachusetts,  New  York,  and  Oregon,  there 
are  also  special  provisions  making  it  a  criminal  offense — "abduc- 
tion" in  New  York — to  take  a  girl  away  from  her  parents  for  the 
purpose  of  marriage  without  the  parents'  consent.  The  ages  below 
which  this  provision  applies  are  14  in  Alabama,  16  in  Massachusetts 
and  Oregon,  and  18  in  New  York. 

8.  OTHER  RELATED  SUBJECTS^ 

Bigamous  marriages  are  illegal  and  void  in  every  state.  In  de- 
fining the  punishment  for  bigamy  each  state  allows  for  a  defense  the 
absence  of  the  former  husband  or  wife  for  a  certain  period,  usually 
five  years,  with  presumption  of  death.  The  wording  of  the  law 
varies  in  the  different  states,  some  laying  more  emphasis  on  the  pre- 

1  Arizona,  Arkansas,  California,  Colorado,  Delaware,  Florida,  Georgia,  Idaho, 
Indiana,  Kentucky,  Louisiana,  Maryland,  Mississippi,  Missouri,  Montana, 
Nebraska,  Nevada,  North  Carolina,  North  Dakota,  Oklahoma,  Oregon,  South 
Carolina,  South  Dakota,  Tennessee,  Texas,  Utah,  Virginia,  and  West  Virginia. 

2  For  reasons  explained  in  the  Introduction  these  subjects  are  not  included  in 
Part  J  III,  The  Marriage  Laws  by  States. 

47 


AMERICAN  MARRIAGE  LAWS 

sumption  of  death  than  others.  A  marriage  under  such  circum- 
stances is  usually  void  from  the  time  its  nullity  is  declared  by  the 
court,  though  in  some  states  it  is  absolutely  void  from  the  be; 
ginning  in  case  the  absent  spouse  returns. 

Consanguineous  marriages — ^within  the  prohibited  degrees  of 
consanguinity  or  affinity — are  illegal  and  void  in  all  states,  and 
there  is  little  difference  in  the  lists  of  prohibited  degrees.  These 
include  ancestors  and  descendants  of  every  degree,  brothers  and 
sisters,  uncles  and  nieces,  aunts  and  nephews,  and  certain  step  re- 
lationships. In  certain  states  first  cousins,  and  in  others  even 
double  first  cousins,  are  not  permitted  to  marry. 

Marriages  by  force,  menace  or  duress  are  declared  by  statute  to  be 
void  in  many  states.  In  others  they  are  held  voidable  by  decisions. 
Suits  to  annul  marriage  under  such  laws  are  usually  brought  by  a 
man  who  has  been  forced  into  marriage  with  a  woman  whom  he  has 
seduced.     The  decisions  in  such  cases  are  conflicting. 

In  certain  states  marriage  under  false  personation  is  made  a 
felony. 

A  number  of  states  provide  that  inter-marriage  of  the  parties  to  a 
seduction  proceeding  shall  bar  or  suspend  further  prosecution.  In 
the  state  where  such  prosecution  is  merely  suspended  by  marriage, 
it  may  be  revived  in  case  of  abandonment  by  the  husband  within  a 
certain  number  of  years.  In  a  few  states  an  offer  of  marriage  by  the 
defendant  is  sufficient  to  bar  prosecution. 

A  majority  of  the  states  provide  that  want  of  authority  or  juris- 
diction on  the  part  of  the  celebrant  shall  not  invalidate  a  marriage 
where  the  contracting  parties  or  either  of  them  have  acted  in  good 
faith  and  in  the  full  belief  that  it  was  a  lawful  marriage.  Other 
technical  omissions  and  informalities  are  also  recognized  in  various 
laws  as  not  invalidating  the  marriage. 

In  most  states  illegitimate  children  are  legitimatized  by  the  sub- 
sequent intermarriage  of  their  parents.  Sometimes  recognition  by 
the  father  is  also  required. 


48 


PART  III 
THE  MARRIAGE  LAWS  BY  STATES 


Ill 

THE  MARRIAGE  LAWS  BY  STATES 

ALABAMA 

Authorities. — Code  of  1907  (references  are  to  its  sections  unless 
otherwise  specified) ;  Laws  through  1915. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  recognized  (Williams  v.  State,  54  Ala.  135;  Beggs  v.  State, 
55  Ala.  108;  Tartt  v.  Negus,  127  Ala.  308). 

2.  MARRIAGEABLE  AGE 

Males  17;  females  14.  Persons  under  these  ages  are  incapable  of  contracting 
marriage  (4879),  but  such  marriages  are  voidable  only  (Beggs  v.  State,  55  Ala. 

108). 

3.  THE  MARRUGE  LICENSE 

a.  Requirement. — No  marriage  shall  be  solemnized  without  a  license  (4884). 

b.  Where  obtained. — From  the  judge  of  probate  of  the  county  in  which  the 
female  resides  (4884). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18, 
unless  previously  married.  It  must  be  given  either  personally  or  in  writing;  if 
the  latter,  execution  must  be  proved  (4885).  Penalty. — Any  one  who  issues  a 
license  without  the  required  consent  forfeits  $200  to  the  parent  for  the  use  of  the 
minor  (4888),  but  this  is  not  recoverable  if  it  be  shown  that  the  parent  consented 
to  the  marriage  or  if  affidavit  was  made  by  the  minor  or  some  other  credible  per- 
son that  such  minor  was  of  the  required  age  (4889). 

e.  Form  of  license. — It  authorizes  the  marriage  and  gives  the  names  of  the 
applicants  (4884). 

f.  Record  of  license. — The  license  must  be  recorded,  together  with  parental 
consent  when  required  (4886).  Penalty. — Any  one  who  fails  to  record  a  license  for 
more  than  five  days  after  it  has  been  returned  by  the  celebrant,  or  who  fails  to 
record  any  consent  required  by  law  to  be  given  before  issuance  of  the  license,  is 
guilty  of  a  misdemeanor  (7390).     No  penalty  is  specified. 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — A  bond  must  be  executed  in  the 
penal  sum  of  $200  payable  to  the  state  with  condition  to  be  void  if  there  is  no  law- 
ful cause  why  the  marriage  shall  not  be  celebrated  (4885). 

For  knowingly  issuing  a  license  for  a  miscegenetic  marriage  the  issuer  "must 
be  fined  from  $100  to  $1,000  and  may  also  be  imprisoned  or  sentenced  to  hard 
labor  for  not  more  than  six  months"  (7422). 

No  license  may  be  issued  to  a  person  who  fails  to  present  to  the  issuer  a  cer- 
tificate by  a  licensed  physician  setting  forth  freedom  from  venereal  diseases  so 
nearly  as  can  be  determined  by  a  thorough  examination  and  by  the  application  of 
the  recognized  clinical  and  laboratory  test  of  scientific  search,  when  in  the  discre- 
tion of  the  examining  physician  such  clinical  and  laboratory  tests  are  necessary. 
All  males  within  fifteen  days  prior  to  application  for  a  license  shall  be  examined. 

51 


AMERICAN  MARRIAGE  LAWS 

Penalties. — Any  one  who  unlawfully  issues  a  license  to  marry  any  male  person 
who  fails  to  present  to  the  issuer  a  certificate  as  required  is  subject  to  a  fine  of  not 
less  than  $50  nor  more  than  $100,  or  to  be  sentenced  to  hard  labor  for  not  over 
six  months,  or  both.  Any  physician  who  knowingly  and  wilfully  makes  any 
false  statement  in  the  certificate  is  subject  to  a  fine  of  not  more  than  $100,  or  to 
be  sentenced  for  not  more  than  six  months  to  hard  labor.    (Acts  of  1919,  No.  178.) 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  judge  of  the  supreme,  circuit  or  city  court;  a  chancellor 
within  the  state;  a  judge  of  probate  or  any  justice  of  the  peace  within  his  county 
(4881);  any  licensed  minister  of  the  gospel  in  regular  communion  with  the  Chris- 
tian church  or  society  of  which  he  is  a  member  (4881);  the  pastor  of  any  reli- 
gious society  according  to  the  rules  or  customs  of  such  society  (4882);  Menno- 
nites  or  Quakers  or  other  Christian  societies  having  similar  rites  according  to 
their  forms  (4883). 

b.  Presentation  of  license. — For  marrying  persons  without  a  license  the  cele- 
brant is  subject  to  a  forfeit  of  $1,000,  half  of  which  goes  to  the  state  and  half  to 
any  person  who  may  sue  for  it  (4890).  For  going  out  of  the  state  and  solemnizing 
the  marriage  of  persons  one  or  both  of  whom  reside  in  the  state,  without  the 
license  required  in  Alabama  or  a  license  from  the  state  in  which  the  marriage  is 
celebrated,  a  similar  penalty  (4890). 

c.  Form  of  ceremony. — No  provision  except  that  Mennonites,  Quakers  or 
similar  Christian  societies  may  solemnize  according  to  their  forms  upon  the  con- 
sent of  the  parties  published  and  declared  before  the  congregation  assembled  for 
public  worship  (4883). 

d.  Other  requirements  and  prohibitions. — Celebrants  are  subject  to  penalties 
for  knowingly  solemnizing  the  following  prohibited  marriages:  miscegenetic,  a 
fine  of  from  $100  to  $1,000,  which  may  be  accompanied  by  imprisonment  for  six 
months  (7422);  incestuous,  a  fine  of  not  less  than  $1,000  (7391);  of  persons  under 
the  age  of  "legal  consent,"  a  fine  of  not  less  than  $1,000  (7391). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — All  persons  or  religious  societies 
solemnizing  marriage  must  within  one  month  certify  the  fact  in  writing  to  the 
judge  of  probate,  setting  forth  the  names  of  the  parties  and  the  time  and  place 
of  the  celebration  (4887).    Penalty. — Violator  is  guilty  of  a  misdemeanor  (7392). 

b.  Local  record. — The  certificate  must  be  recorded  in  the  book  kept  for  the 
registry  of  license  (4887).  Penalty. — One  who  fails  to  record  it  within  five  days 
after  its  return  is  guilty  of  a  misdemeanor  (7390). 

c.  State  record. — The  judge  of  probate  must  report  monthly  to  the  state 
board  of  health  all  marriages  that  have  occurred  in  his  county  for  the  preceding 
month,  and  furnish  such  information  in  regard  to  each  marriage  as  is  on  record 
in  his  office  (730). 

6.  INTER-STATE  RELATIONS 
No  provision. 

7.  CERTAIN  OTHER  PROHIBITIONS 

Marriage  between  a  white  person  and  a  negro  or  descendant  of  a  negro  to  the 
third  generation  inclusive  (7421). 

It  is  a  criminal  offense  to  take  a  girl  under  fourteen  away  from  her  parents  for 
the  purpose  of  marriage  (6211). 

No  marriage  shall  be  entered  into  in  any  manner  whatsoever  without  the 
male  party  shall  have  first  submitted  to  the  antenuptial  examination  referred  to 
in  3h  and  having  obtained  a  certificate  from  such  physician  of  his  freedom  from 
said  diseases  (Acts  of  1919,  No.  178). 

52 


LAWS  BY  STATES 

ARIZONA 

Authorities. — Revised  Statutes  of  1913;  Civil  and  Penal  Codes 
(references  are  to  sections  of  the  Civil  Code  unless  otherwise  speci- 
fied) ;  Laws  through  the  special  session  of  1918. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  not  recognized.  Marriages  contracted  without  a  license 
and  solemnization  are  invalid  (3844). 

2.  MARRIAGEABLE  AGE 

Males,  18;  females,  16.  Persons  under  these  ages  shall  not  marry,  but  a  per- 
son may  be  married  under  the  specified  age,  if  he  or  she  is  the  prospective  parent 
of  a  child,  and  if  parental  consent  is  had,  and  also  the  approval  of  the  judge  of 
the  superior  court,  and  if  the  parties  are  not  forbidden  to  marry  by  laws  relating 
to  miscegenation.     (Acts,  1919,  No.  18.) 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — No  marriage  shall  be  solemnized  without  a  license  (3833). 

b.  Where  obtained. — From  the  clerk  of  the  superior  court  in  the  county  in 
which  one  of  the  parties  resides,  or  in  which  the  marriage  is  to  take  place  (3833). 
From  the  superintendent  or  agent  of  an  Indian  school  or  agency  (Ses.  Laws,  1915, 
p.  50).  Penalty. — The  latter  issuer,  for  failure  to  report  and  transmit  the  legal  fee 
to  the  clerk  upon  issuance  of  a  license  or  for  using  his  authority  for  his  personal 
gain,  is  subject  to  imprisonment  for  not  over  six  months  or  a  fine  of  from  $50  to 
$300,  or  both  (S.  L.,  1915,  p.  50). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  in  writmg  for  males  under  21  and  females 
under  18  (3835).  Penalty. — For  issuing  a  license  in  violation  of  this  provision,  the 
issuer  is  subject  to  a  fine  of  from  $10  to  $100,  or  imprisonment  for  not  over  60  days, 
or  both  (3842). 

e.  Form  of  license. — It  authorizes  the  marriage  by  a  qualified  person  (3834). 

f.  Record  of  license. — Required  (3836). 

g.  Life  of  license. — No  provision. 

4.  SOLEMNIZATION 

a.  The  celebrant. — Judges  of  courts  of  record;  justices  of  the  peace  of  the 
several  counties  (3830-3831);  the  superintendent  or  agent  of  an  Indian  school 
or  agency  (Laws,  1915,  p.  50);  any  regularly  licensed  or  ordained  clergyman, 
including  all  persons  who  by  the  customs,  rules,  and  regulations  of  any  religious 
society  are  permitted  to  solemnize  or  officiate  at  marriage  ceremonies  (3830-3831). 

b.  Presentation  of  license. — It  is  a  misdemeanor  to  solemnize  a  marriage  with- 
out a  license  (P.  C.  362). 

c.  Form  of  ceremony. — There  must  be  at  least  two  witnesses  of  lawful  age 
besides  the  celebrant  (3843). 

d.  Other  requirements  and  prohibitions. — For  taking  part  in  the  marriage  of 
a  male  under  21  or  a  female  under  18  without  parental  consent  in  writing,  or  for 
sanctioning  such  a  marriage  by  his  presence,  or  by  the  issuance  of  a  certificate, 
the  celebrant  is  subject  to  a  fine  of  from  $50  to  $300,  or  imprisonment  for  not  over 
six  months,  or  both  (3841). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  must  endorse  the  fact 
of  solemnization  on  the  license  and  return  it  to  the  clerk  of  the  superior  court 

53 


AMERICAN  MARRIAGE  LAWS 

within  20  days  after  solemnization  (3836).  Penalties. — For  failure  to  make  return, 
a  fine  of  from  $10  to  $100,  or  imprisonment  not  over  60  days,  or  both  (3842). 
Failure  to  make  return  within  30  days,  or  the  making  of  a  false  return,  is  a  misde- 
meanor (P.  C.  362). 

b.  Local  record. — The  return  is  to  be  recorded  by  the  clerk  (3836).  Penalty. — 
Wilfully  making  a  false  record  is  a  misdemeanor  (362  P.  C). 

c.  State  record. — No  provision. 

6.  INTER-STATE  RELATIONS 

Marriages  solemnized  elsewhere  by  persons  intending  at  the  time  to  reside  in 
Arizona  shall  have  the  same  legal  consequences  as  if  solemnized  there,  and  persons 
residing  in  Arizona  "can  not  evade"  any  of  the  provisions  of  its  laws  as  to 
marriage  by  going  elsewhere  for  the  solemnization  (3839). 

7.  CERTAIN  OTHER  PROHIBITIONS 

All  marriages  of  persons  of  Caucasian  blood  or  their  descendants  with  negroes, 
Mongolians  or  Indians  or  their  descendants  are  null  and  void  (3837). 


ARKANSAS 
Authorities. — Digest  of  Statutes  of  1916  by  Kirby  and  Castle 
(references  are  to  its  sections) ;  Laws  through  1917. 

I.  COMMON  LAW  MARRIAGES 

Such  marriages  have  been  declared  invalid  by  the  courts  (Furth  v.  Furth, 
97  Arkansas  272),  but  if  such  a  marriage  is  entered  into  in  a  state  which  recognizes 
its  validity,  it  will  be  recognized  as  valid  in  Arkansas  (Evatt  v.  Miller,  114  Arkansas 
84;  Estes  v.  Merrill,  121  Arkansas  361). 

2.  MARRIAGEABLE  AGE 

Males,  17;  females,  14  (6082).  The  marriage  of  a  person  under  the  marriage- 
able age  is,  however,  only  voidable  (6086).  See  also  Henderson  v.  Ressor,  178 
S.  W.  175,  265  Mo.  718  and  Mobbs  v.  Millard,  106  Arkansas  563. 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — All  persons  contracting  marriage  are  required  to  first 
obtain  a  license  (6106). 

b.  Where  obtained. — From  the  clerk  of  the  county  court  of  any  county  (6106) ; 
also  from  the  clerks  of  the  probate  courts  in  counties  having  two  judicial  districts 
(6108). 

Both  parties  must  appear. 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  all  under  the  "lawful  age"  (6111),  i.  e.,the 
age  of  majority.  In  Arkansas  this  is  21  for  males  and  18  for  females  (4154).  The 
applicant  may  introduce  the  parent  or  guardian  of  either  party,  or  a  certificate, 
duly  attested,  from  the  parent  or  guardian  to  prove  that  the  parties  are  of  lawful 
age,  and  in  case  they  are  not,  there  must  be  satisfactory  evidence  of  consent, 
either  verbal  or  written.  The  issuer  may  require  the  applicant  to  make  affidavit 
to  the  genuineness  of  the  consent  or  to  the  correctness  of  the  ages  given,  this 
affidavit  to  be  open  to  public  inspection  (6111). 

e.  Form  of  license. — It  contains  the  names  of  the  parties  (6109). 

f.  Record  of  license. — No  direct  provision,  but  a  recording  is  provided  for  in 
effect  through  the  requirement  of  a  bond,  as  shown  under  3h. 

54 


LAWS  BY  STATES 

g.  Life  of  license. — 60  days.  It  must  be  returned  within  that  time,  duly 
executed;  otherwise,  the  applicant  is  liable  for  the  amount  of  his  bond  (6112). 

h.  Other  requirements  and  prohibitions. — The  applicant  must  enter  into  bond 
in  the  penal  sum  of  $100,  conditioned  that  the  parties  have  a  lawful  right  to  the 
license  and  that  they  will  faithfully  carry  into  effect  the  provisions  thereof.  This 
bond  becomes  void  on  return  of  the  license,  executed  by  an  authorized  celebrant 
(6110). 

Penalties. — For  issuing  a  license  contrary  to  law,  a  fine  of  from  $100  to  $500 
(6114).  Whoever  shall  apply  for  a  license  to  marry  without  first  obtaining  the 
consent  of  the  other  party  shall  be  fined  from  $10  to  $100,  and  is  also  liable  to  the 
party  injured  in  a  suit  for  damages  (6113). 

4.  SOLEMNIZATION 

a.  The  celebrant. — The  governor  of  the  state,  any  judge  of  a  court  of  record 
within  the  state,  a  justice  of  the  peace  within  his  county  (6091);  a  regularly 
ordained  minister  or  priest  of  any  religious  sect  or  denomination  (6091)  after 
recording  his  credentials  and  obtaining  a  certificate  as  provided  (6092) ;  religious 
societies  to  which  the  parties  belong  which  reject  formal  ceremonies  (6100). 
Penalties. — For  failure  by  a  clerk  or  recorder  to  record  properly  the  credentials 
of  a  religious  celebrant,  a  fine  of  not  over  $100  on  motion  of  the  party  aggrieved 
(6103).  Ministers  or  other  persons  purporting  themselves  to  be  such  are  subject 
to  a  fine  of  not  less  than  $100  for  violating  any  of  the  provisions  relating  to  the 
credentials  for  solemnizing  marriage  and  the  celebrant's  own  license  (6094). 

b.  Presentation  of  license. — No  specific  provision.  But  presentation  is  indi- 
rectly required  through  the  requirement  and  penalty  shown  under  5a  below. 

c.  Form  of  ceremony. — The  customs  of  the  particular  church  or  society  when 
solemnized  by  ministers  or  religious  societies.  Such  forms  shall  be  observed  by  a 
civil  officer  as  he  shall  deem  most  appropriate  (6099-6100). 

d.  Other  requirements  and  prohibitions. — It  is  a  misdemeanor  to  solemnize  an 
incestuous  marriage  (6090).  In  another  section  (6115)  a  penalty  of  from  $100  to 
$500  is  established  for  violation  of  any  of  the  provisions  of  the  law  relating  to  such 
marriages. 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant,  or  officer  of  the  religious 
society,  must  execute  and  sign  the  license  (6109),  and  if  a  minister  must  state  when 
and  where  his  credentials  are  recorded  (6092).  The  contracting  parties  are 
required  to  return  the  executed  license  to  the  issuer  (6112)  who  after  recording  it 
shall  attach  a  certificate  of  his  record  to  the  license  and  return  the  same  to  the 
party  presenting  it  (6116).  Penalties. — For  failure  by  the  celebrant  to  sign  and 
return  the  license  to  the  contracting  parties  at  the  time  of  marriage,  a  fine  of 
from  $100  to  $500  (6115).  For  wilfully  making  a  false  return,  the  celebrant  shall 
be  fined  not  less  than  $100  (6117). 

b.  Local  record. — The  return  is  to  be  recorded  in  the  clerk's  office  (6116). 
Penalty. — For  wilfully  making  a  false  record,  a  fine  of  not  less  than  $100  (6117). 

c.  State  record. — The  county  and  probate  clerks  must  report  monthly  to  the 
state  registrar  of  vital  statistics  (Laws,  1917,  p.  802). 

6.  INTER-STATE  RELATIONS 

Marriages  valid  by  the  laws  of  the  state  or  country  in  which  they  took  place 
and  in  which  the  parties  actually  resided,  are  valid  in  Arkansas  (6088). 

7.  CERTAIN  OTHER  PROHIBITIONS 

The  marriage  of  white  persons  with  negroes  or  mulattoes  (6084);  also  any 
marriage  with  a  person  under  the  marriageable  age  (6082). 

55 


AMERICAN  MARRIAGE  LAWS 

CALIFORNIA 
Authorities. — Deering's  Code  of  1915,  Civil,  Penal  and  Political; 
Laws  through  1917.     References  are  to  sections  of  the  Civil  Code 
unless  otherwise  specified. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  not  recognized.  Consent  alone  will  not  constitute  mar- 
riage; it  must  be  followed  by  a  solemnization  authorized  by  the  code  (55). 

2.  MARRIAGEABLE  AGE 

Males,  18;  females,  15  (56). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — All  persons  about  to  be  joined  in  marriage  must  obtain  a 
license  therefor  (69).  Unmarried  persons,  not  minors,  who  have  been  living  to- 
gether as  husband  and  wife  may  be  married  without  a  license  by  a  clergyman  (79). 

b.  Where  obtained. — From  the  county  clerk  of  the  county  in  which  the 
marriage  is  to  be  celebrated  (69). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent — Required  for  males  under  21  and  females  under  18, 
unless  previously  married.  It  must  be  given  in  writing,  duly  verified  (69).  When 
marriages  of  males  under  18  or  females  under  15  are  contracted  without  parental 
consent,  they  may  be  annulled  on  suit  of  the  non-aged  party  within  four  years  after 
arriving  at  the  marriageable  age  unless  subsequently  recognized,  or  on  suit  of  the 
parent  during  non-age  (83). 

e.  Form  of  license. — The  license  must  show  the  identity  of  the  parties,  their 
real  and  full  names  and  places  of  residence,  their  ages  and  whether  white,  mon- 
golian, negro  or  mulatto  (69). 

f.  Record  of  license. — No  provision. 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — The  clerk  may  examine  the  male 
applicant  on  oath  for  all  the  facts  required  to  be  stated  in  the  license — which 
examination  shall  be  reduced  to  writing  (69).  No  license  may  be  issued  for  the 
marriage  of  a  white  person  with  a  negro,  mulatto  or  mongolian  (69),  or  when 
either  party  is  imbecile  or  insane  or  when  applying  is  under  the  influence  of  any 
intoxicating  liquor  or  a  narcotic  drug. 

Besides  the  license  a  certificate  of  registry,  filled  out  in  the  presence  of  the 
county  clerk,  must  be  obtained  showing  the  race,  color,  age,  names,  birthplace, 
residence  and  parentage  of  each  party,  whether  previously  married  and  if  so,  the 
manner  of  dissolution  (69a). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  justice  of  the  supreme  court,  a  justice  of  the  district 
court  of  appeal,  a  judge  of  the  superior  court,  a  justice  of  the  peace,  a  judge  of  any 
police  court,  a  city  recorder  (70) ;  a  priest  or  minister  of  the  gospel  of  any  denomi- 
nation (70);  certain  religious  denominations  according  to  their  forms  (79a). 

b.  Presentation  of  license. — Required.  Penalty. — A  celebrant  who  solemnizes 
a  marriage  without  first  being  presented  with  the  license  is  subject  to  a  fine  of 
from  $100  to  $1,000  or  imprisonment  for  three  months  to  one  year,  or  both 
(360  Penal  Code). 

The  certificate  of  registry  (see  3h)  must  also  be  presented  (69a). 

c.  Form  of  ceremony. — The  parties  must  declare  in  the  presence  of  the  cele- 
brant that  they  take  each  other  as  husband  and  wife  (71).    Marriage  of  members  of 

56 


LAWS  BY  STATES 

any  particular  religious  denomination  having  as  such  a  pecuHar  form  of  entering 
the  marriage  relation  may  be  solemnized  in  that  manner  but  the  parties  must  make 
a  declaration  showing  their  names,  ages,  residence  and  the  fact  of  marriage  which 
must  be  signed  and  sealed  in  the  presence  of  witnesses  and  acknowledged  and 
recorded  as  in  grants  of  real  property  (79a).  If  no  record  of  the  solemnization  of  a 
marriage  is  known  to  exist,  the  parties  may  make  the  same  declaration  (76). 

d.  Other  requirements  and  prohibitions. — If  the  celebrant  has  any  reason  to 
doubt  the  correctness  of  the  statements  in  the  marriage  license  he  must  satisfy 
himself  thereof,  and  for  that  purpose  is  authorized  to  administer  oaths  (72).  Any 
celebrant  who  knowingly  solemnizes  an  incestuous  or  other  marriage  forbidden  by 
law  is  liable  to  a  similar  penalty  (359  Penal  Code). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  must  endorse  upon  or 
attach  to  the  license  a  certificate  showing  the  time  and  place  of  solemnization,  and 
the  name  and  place  of  residence  of  one  or  more  witnesses  to  the  ceremony  (73). 
He  must,  at  the  request  of,  and  for  either  party,  make  a  certified  copy  of  the 
license  and  certificate  and  file  the  original  with  the  county  recorder  within  30  days 
(74) ;  he  must  also  file  the  certificate  of  registry  (see  3h  above)  with  the  recorder 
within  three  days  after  the  ceremony  (69a;  3076  Pol.  C).  Penalty. — For  failure 
to  file  the  marriage  certificate  within  the  specified  time  or  for  making  a  false 
return,  a  fine  of  from  $100  to  $1,000  or  imprisonment  from  three  months  to  one 
year,  or  both.  For  failure  by  the  husband  to  put  on  record  a  marriage  solemnized 
by  declaration  a  similar  penalty  (79a). 

b.  Local  record. — The  county  recorder  must  record  the  license  and  certificate 
when  returned  (4131  Pol.  C).  He  is  also  required  to  make  an  accurate  copy  of 
each  certificate  of  registry  returned  to  him,  to  be  permanently  preserved  in  his 
office  (3078  Pol.  C).  Penalty. — For  making  a  false  record,  a  fine  of  from  $100 
to  $1,000  or  three  months  to  one  year  imprisonment,  or  both  (360  Penal  Code). 

When  unmarried  persons,  not  minors,  who  have  been  living  together  shall  have 
been  married  by  a  clergyman  without  a  license,  he  shall  record  the  marriage  upon 
the  records  of  his  church  (79). 

c.  State  record. — Each  month  the  county  recorder  must  file  all  original  cer- 
tificates of  registry  received  by  him  with  the  state  registrar  of  vital  statistics 
(3078-80  Pol.  C).  Penalty. — Any  person  who  fails  to  perform  any  duty  imposed 
on  him  under  the  chapter  on  registration  is  guilty  of  a  misdemeanor  (3082 
Pol.  C). 

6.  INTER-STATE  RELATIONS 

Out  of  state  marriages  are  valid  if  valid  by  the  laws  of  the  country  in  which 
they  were  contracted  (63). 

7.  CERTAIN  OTHER  PROHIBITIONS 

The  marriage  of  a  white  person  with  a  negro,  mulatto,  or  mongolian  (60). 

COLORADO 

Authorities. — Mill's  Annotated  Statutes  1912  (references  are  to 
its  sections);  Laws  through  1917. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  recognized  (Israel  v.  Arthur,  18  Colo.  158). 

2.  MARRIAGEABLE  AGE 

No  provision. 

57 


AMERICAN  MARRIAGE  LAWS 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — "The  county  clerk  shall  have  authority  to  issue  a  marriage 
license  to  any  person  applying  for  the  same."  Any  celebrant  "to  whom  such 
license  duly  issued  may  come  *  *  *  may  lawfully  solemnize  matrimony" 
(4732). 

b.  Where  obtained. — From  the  county  clerk  of  any  county  (4732). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18  (4738). 
There  is  no  provision  as  to  form. 

e.  Form  of  license. — It  must  show  the  applicants'  names,  residences,  previous 
marriages,  if  any,  and  the  manner  of  their  dissolution  with  grounds  for  divorce 
if  there  was  one  (4732). 

f .  Record  of  license. — No  provision  other  than  the  affidavit  called  for  in  3h. 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — If  the  clerk  has  no  personal  knowl- 
edge of  the  competency  of  the  parties,  he  shall  take  the  affidavit  in  writing  of  the 
applicant  and  such  other  testimony  as  he  may  see  proper.  Penalties. — For  issuing 
a  license  to  persons  not  legally  competent  to  marry,  without  taking  the  required 
testimony,  a  fine  of  $100  (4734).  Any  one  who  swears  falsely  in  regard  to  any  fact 
as  to  competency  shall  be  deemed  guilty  of  perjury  (4735). 

4.  SOLEMNIZATION 

a.  The  celebrant. — Any  judge  or  justice  of  the  peace,  clergyman,  or  licensed 
preacher  of  the  gospel  (4736). 

b.  Presentation  of  license. — Required.  Penalty. — A  celebrant  who  solemnizes 
a  marriage  without  a  license  is  subject  to  a  fine  of  from  $50  to  $200  (4740-41). 

c.  Form  of  ceremony. — No  provision,  but  the  certificate  provides  for  witnesses 
(4733). 

d.  Other  requirements  and  prohibitions. — The  license  is  sufficient  authority  to 
the  celebrant  provided  he  has  no  personal  knowledge  of  the  incompetency  of  the 
parties.  Penalty. — For  solemnizing  a  marriage  knowing  that  either  party  is 
legally  incompetent,  a  fine  of  from  $50  to  $200  (4740-41). 

The  marriage  of  minors  shall  not  be  solemnized  without  parental  consent;  in 
case  there  is  no  parent  or  guardian,  the  celebrant  may  use  his  judgment.  Penalty. 
— For  violation,  a  fine  of  not  over  $500  (4738). 

For  solemnizing  an  incestuous  or  miscegenetic  marriage  a  $50  to  $500  fine,  or 
three  months  to  two  years  in  prison,  or  both  (4730). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  license  and  certificate,  duly  exe- 
cuted by  the  celebrant,  shall  be  returned  by  him  to  the  issuer  within  30  days  from 
solemnization  (4734).  The  form  and  content  of  the  certificate  are  specified  (4733). 
Penalty. — For  failure  to  make  return  as  required,  a  fine  of  from  $20  to  $50  (4733). 

The  celebrant  shall  keep  a  record  of  all  marriages  solemnized  by  him  and 
within  three  months  transmit  a  certificate  of  every  marriage  to  the  clerk  of  the 
county  in  which  the  marriage  took  place  (4739).  Penalties. — For  failure  to  make 
this  return,  the  celebrant  shall  forfeit  $100  (4739).  For  making  a  false  return, 
a  fine  of  not  less  than  $100  and  imprisonment  for  not  less  than  three  months 
(4744). 

b.  Local  record. — The  clerk  shall  record  all  returns  of  marriages  in  a  book  to 
be  kept  for  that  purpose  within  one  month  after  receiving  them  (4741).  Penalty. 
— For  failure  to  record  the  return  within  the  required  time,  a  forfeit  of  $100  to  be 
recovered  with  costs  by  any  person  who  shall  prosecute  for  them  (4741). 

The  county  clerk  of  each  county  shall  keep  on  file  every  marriage  license  re- 
turned to  him  and  shall  record  each  marriage  certificate  so  returned  (4742). 

58 


LAWS  BY  STATES 

Penalty. — Any  clerk  making  a  false  record  is  punishable  by  a  fine  of  not  less 
than  $100  and  imprisonment  for  not  less  than  three  months  (4744). 
c.  State  record. — No  provision. 

6.  INTER-STATE  RELATIONS 

All  marriages  contracted  without  the  state  which  are  valid  by  the  laws  of  the 
country  in  which  they  were  contracted  are  valid  in  Colorado,  but  this  shall  not 
be  construed  to  allow  bigamy  or  polygamy  (4731). 

7.  CERTAIN  OTHER  PROHIBITIONS 

Marriage  between  negroes  or  mulattoes  and  white  pjersons  (4729). 


CONNECTICUT 

Authorities. — General  Statutes,  Revision  of  1918  (references  are 
to  its  sections).  •. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  apparently  not  recognized,  but  no  decisions  have  been 
rendered  bearing  directly  on  the  point. 

2.  MARRIAGEABLE  AGE 

No  statutory  provision  establishing  an  absolute  minimum  age,  but  if  either 
party  applying  for  a  license  is  under  16  years  of  age  it  is  necessary  to  have  the 
consent  of  a  selectman  of  the  town  endorsed  upon  the  license  (5263). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — No  person  shall  be  married  until  a  license  has  been  issued 
(5263). 

b.  Where  obtained. — From  the  registrar  of  births,  marriages  and  deaths  of  the 
town  in  which  the  marriage  is  to  be  celebrated  (5263).  The  town  clerk  is  ex-officio 
registrar  (321). 

c.  Advance  notice,  objections,  etc. — If  neither  party  is  a  resident  of  the  town 
in  which  the  marriage  is  to  be  celebrated  the  license  must  not  be  issued  until  five 
days  after  the  application,  unless  the  probate  judge  or  the  celebrant  renders  a 
written  decision  that  in  his  opinion  public  policy  or  the  physical  condition  of  one 
of  the  parties  requires  immediate  solemnization.  This  shall  be  filed  as  a  public 
document  (5263).  Penalty. — For  violation  by  the  registrar  a  fine  of  not  more 
than  $100  (5263). 

d.  Parental  consent. — Required  for  minors,  i.  e.,  those  of  both  sexes  below  21 
years  (5263).  Consent  must  be  given  in  writing.  In  the  case  of  a  minor  who  has 
no  parent  or  guardian  residing  in  the  United  States  the  consent  of  the  first  select- 
man of  the  town  where  such  minor  has  last  resided  for  the  period  of  six  months  is 
sufficient  (5263).  Any  person  under  the  control  of  a  guardian  or  conservator  must 
file  the  written  consent  of  such  guardian  or  conservator,  and  unless  this  provision 
is  complied  with  no  person  shall  acquire  any  rights  by  marriage  in  the  property 
of  another  who  was  at  the  time  of  the  marriage  under  such  guardianship.  Penalty. 
— For  knowingly  issuing  a  license  without  the  consent  required,  a  fine  of  not  more 
than  $100  (5263). 

e.  Form  of  license. — It  states  that  the  parties  named  have  complied  with  the 
provisions  (5263). 

f.  Record  of  license. — No  provision.  But  the  form  of  license  established  by 
the  state  board  of  health,  under  section  2375,  provides  for  a  stub  on  which  a 
record  may  be  kept. 

59 


AMERICAN  MARRIAGE  LAWS 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — One  of  the  parties,  under  oath,  shall 
inform  the  registrar  as  to  the  name,  age,  color,  occupation,  birthplace,  residence 
and  condition — i.  e.,  whether  widowed,  single  or  divorced  or  under  the  super- 
vision of  a  guardian  or  conservator — of  each  party  (5263). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  judge  or  justice  of  the  peace;  an  ordained  or  licensed 
clergyman  resident  in  any  state  who  continues  in  the  work  of  the  ministry;  or 
a  religious  denomination  according  to  its  usages.  No  public  official  shall  celebrate 
a  marriage  on  authority  of  a  license  issued  by  himself  or  his  assistant  (5267). 
Penalties. — For  solemnizing  marriage  when  knowingly  not  authorized  to  do  so 
the  celebrant  is  subject  to  a  fine  of  not  over  $500,  or  imprisonment  for  not  more 
than  one  year,  or  both  (6431).^  A  public  official  who  celebrates  a  marriage  under 
authority  of  a  license  issued  by  himself  shall  be  fined  not  more  than  $50  (5267). 

b.  Presentation  of  license. — For  solemnizing  without  it  the  celebrant  is  subject 
to  a  fine  of  not  over  $100  (5263). 

c.  Form  of  ceremony. — No  provision. 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  must  certify  upon  the 
license  the  fact,  time  and  place  of  marriage,  and  return  it  to  the  issuer  before  or 
during  the  first  week  of  the  month  next  succeeding  the  marriage  (5265).  In  the 
case  of  marriages  in  a  foreign  country  the  parties  who  are  citizens  of  this  state 
are  responsible  for  the  return  of  the  license  and  certificate  (5264).  Penalties. — 
For  failure  by  the  celebrant  to  make  return,  a  fine  of  not  over  $10  (5265).  For 
failure  by  a  person  marrying  in  a  foreign  country  to  make  return,  a  fine  of  $100 
(5264). 

b.  Local  record. — All  returns  shall  be  recorded  by  the  registrar  within  60  days 
(2377).  When  it  appears  that  either  party  was  a  resident  of  some  other  town  in  the 
state,  the  registrar  shall  transmit  a  certified  copy  of  the  certificate  to  the  registrar 
of  such  town  (325).  It  is  further  provided  that  the  registrar  shall  ascertain  as 
accurately  as  he  can  all  marriages  occurring  in  his  town  (324).  Penalties. — For 
knowingly  making  false  entries,  not  over  $50,  or  imprisonment  not  over  three 
months,  or  both  (327).  Any  person  violating  any  provision  of  this  chapter  for 
which  no  specific  penalty  is  provided  is  subject  to  a  fine  of  from  $7  to  $25 
(338). 

c.  State  record. — The  registrar  shall  transmit  monthly  to  the  superintendent 
of  vital  statistics  an  attested  copy  of  every  certificate  of  marriage  received  by  him 
(324).  The  registrar  to  whom  the  duplicate  referred  to  in  5b  is  sent  shall  not 
report  it  to  the  superintendent  (325).    Penalty. — ^See  5b. 

d.  Penalties  not  shown  above. — Any  person  who  shall  knowingly  publish  a 
false  notice  of  any  marriage  shall  be  fined  not  more  than  $100,  or  imprisoned  not 
more  than  six  months  (6211). 

6.  INTER-STATE  RELATIONS 

There  is  no  provision  as  to  marriages  in  another  state.  The  marriage  of  a 
citizen  of  Connecticut  in  a  foreign  country  in  conformity  with  the  laws  of  that 
country  shall  be  valid  provided  each  party  would  have  had  legal  capacity  to 
contract  such  a  marriage  in  Connecticut,  and  there  are  special  provisions  for  such 
marriages  (5264). 

»  There  are  conflicting  penalty  clauses.  Two  lawyers  in  Connecticut  agree  that  this  is  apparently 
the  prescribed  penalty.  Another  Connecticut  lawyer  holds  that  apparently  a  $50  penalty  applies, 
as  prescribed  in  Acts,  1917,  p.  2299. 

6o 


LAWS  BY  STATES 

7.  CERTAIN  OTHER  PROHIBITIONS 

The  marriage  of  an  imbecile,  epileptic  or  feeble-minded  person  unless  the 
woman  is  over  45  years  of  age.  Penalties. — Any  person  contracting  such  a 
marriage  is  subject  to  imprisonment  for  not  more  than  three  years  (6428).  Any 
one  who  assists  in  procuring  such  a  marriage  is  subject  to  a  fine  of  not  over  $1,000, 
or  five  years  imprisonment,  or  both  (6429). 


DELAWARE 

Authorities. — Revised  Code  of  1915  (references  are  to  its  sec- 
tions); Laws  through  1917. 

1.  COMMON  LAW  MARRIAGES 

The  status  of  such  marriages  is  not  established.  A  marriage  is  not  invalid 
through  failure  to  take  out  a  license  (3000),  but  there  is  no  statutory  provision 
regarding  the  necessity  of  a  marriage  ceremony  and  the  question  has  never  been 
finally  passed  upon  by  the  courts.  A  correspondent  writes :  "Our  courts  recognize 
common  law  marriages,  valid  by  the  laws  of  other  states,  where  the  parties  con- 
tracted such  marriage  in  such  foreign  state,  and  have  held  that  a  common  law 
wife  is  entitled  to  protection  of  the  statute  which  imposes  a  penalty  for  wife 
beating.  In  a  recent  case  in  Kent  County,  the  Court  expressly  declined  to  pass 
upon  the  question  of  whether  a  common  law  marriage  was  valid  in  Delaware  or 
not,  and  the  Industrial  Accident  Board  has  recently  held  that  a  common  law  wife 
is  not  entitled  to  the  benefits  of  the  Workmen's  Compensation  Act.  It  is  curious 
that  the  question  seems  to  be  as  yet  undecided,  but  I  think  the  better  opinion  is 
that  a  common  law  marriage  contracted  in  this  State  is  not  valid." 

2.  MARRIAGEABLE  AGE 

No  specific  provision,  but  if  the  male  is  under  18  or  the  female  under  16  and 
the  marriage  is  not  confirmed  after  reaching  that  age,  the  non-aged  party  may 
obtain  a  divorce  (3006). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — Persons  intending  to  be  married  must  first  obtain  a  license 
(2995). 

b.  Where  obtained. — From  the  clerks  of  the  peace  of  the  several  counties; 
from  justices  of  the  peace  provided  neither  party  is  a  resident  of  the  state  (2995). 

c.  Advance  notice,  objections,  etc. — ^Advance  notice  is  not  required  but  the 
license  must  be  obtained  by  residents  of  the  state  at  least  24  hours  before  the 
marriage  is  performed,  and  when  both  parties  are  non-residents,  at  least  96  hours 
before  (2994).    For  penalties  see  3h. 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18. 
The  consent  must  be  certified  under  seal,  in  the  presence  of  two  reputable  wit- 
nesses (2998). 

e.  Form  of  license. — It  must  show  the  names  and  residence  of  the  parties. 

f.  Record  of  license. — The  facts  ascertained  must  be  recorded  and  subscribed 
to  by  the  parties.    This  record  must  be  kept  open  to  public  inspection  (2997). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — When  both  parties  are  non-residents 
of  the  state  the  clerk  must  examine  them  under  oath  as  to  their  names,  residence, 
occupation,  age,  color,  relationship  if  any,  whether  they  have  been  previously 
married,  and  the  names  and  residence  of  their  parents,  and  the  license  shall  be 
issued  only  after  it  has  been  made  to  appear  that  no  legal  impediment  exists. 

6i 


AMERICAN  MARRIAGE  LAWS 

Where  one  or  both  parties  are  residents  of  the  state  only  one  need  be  examined 
and  the  answers  need  not  be  made  under  oath  unless  the  issuer  deems  it  necessary. 
If  neither  party  is  personally  known  to  the  issuer  as  a  resident  of  the  state  he  or 
she  must  be  identified  as  such  (2997).  A  license  must  not  be  issued  when  either 
party  is  under  the  influence  of  a  narcotic  drug  or  intoxicating  liquor  or  is  an  im- 
becile, epileptic  or  of  unsound  mind  or  is  or  has  been  an  inmate  of  an  insane 
asylum  unless  it  appears  that  such  person  has  been  satisfactorily  discharged  from 
such  asylum  (2995). 

Penalties. — Any  applicant  swearing  falsely  is  guilty  of  perjury  (2999).  An 
issuer  who  grants  a  license  for  an  incestuous  or  miscegenetic  marriage  or  for  the 
marriage  of  a  pauper  or  person  of  unsound  mind,  or  who  knowingly  commits  any 
violation  of  any  of  the  provisions  of  the  chapter  on  marriage  shall  be  fined  $100 
and  in  default  of  payment  imprisoned  not  over  30  days  (2992;  2995). 

4.  SOLEMNIZATION 

a.  The  celebrant, — The  mayor  of  the  city  of  Wilmington;  any  ordained 
minister  of  the  gospel  and  every  minister  in  charge  of  a  recognized  church;  certain 
religious  societies  to  which  either  of  the  parties  belong.  Penalty. — For  solemnizing 
marriage  when  not  authorized  by  law  to  do  so,  a  fine  of  $100  and  in  default  of 
payment  imprisonment  for  not  over  30  days  (2993). 

All  celebrants  must  register  with  the  state  registrar  and  must  report  the  fact 
of  removal  to  another  place  within  30  days  (2993;  817).  Penalty. — For  failure 
to  do  so  a  fine  of  from  $5  to  $10  (817). 

b.  Presentation  of  license. — For  solemnizing  without  a  marriage  license  the 
celebrant  or  religious  society  is  subject  to  imprisonment  for  not  over  six  months, 
or  a  fine  of  not  over  $500,  or  both  (3000). 

c.  Fonn  of  ceremony. — No  provision. 

d.  Other  requirements  and  prohibitions. — The  celebrant  is  further  subject  to 
penalties  as  follows:  For  knowingly  solemnizing  an  incestuous  or  miscegenetic 
marriage  or  the  marriage  of  a  pauper  or  a  person  of  unsound  mind,  a  fine  of  $100 
and  in  default  of  payment,  imprisonment  not  exceeding  30  days  (2992). 

For  solemnizing  a  marriage  prior  to  the  expiration  of  96  hours  from  the  time  of 
issuance,  when  both  parties  are  non-residents;  or  24  hours,  when  one  or  both 
are  residents  of  the  state,  imprisonment  not  over  six  months  or  a  fine. of  not  over 
$500,  or  both.    This  applies  also  to  religious  societies  (3000). 

e.  Penalties  not  shown  above. — Any  person  who  knowingly  assists  in  contract- 
ing an  incestuous  or  miscegenetic  marriage,  the  marriage  of  a  pauper  or  a  person 
of  unsound  mind  shall  be  fined  $100  and  in  default  of  payment  imprisoned  not 
over  30  days  (2992).  If  any  pauper  supported  in  the  almshouse  or  county  hospital 
shall  marry  he  shall  be  dismissed,  and  if  the  overseer  consents  to  such  marriage  he 
shall  be  removed.  If  any  minister  knowingly  solemnizes  such  marriage  he  shall 
be  fined  $50  (1459).    There  is  a  more  severe  penalty  shown  under  4d. 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — A  certificate  must  be  returned  to  the 
issuer  by  the  celebrant  or  officer  of  the  religious  society  (2996).  The  celebrant  is 
further  required  to  make  a  return,  giving  detailed  information,  on  or  before  the 
tenth  day  of  the  following  month  to  the  local  registrar  of  the  district  in  which  the 
marriage  occurred  (815;  Laws  1915,  p.  149).  Penalties. — For  failure  to  make 
return  to  the  issuer  within  four  days  the  celebrant  is  subject  to  a  fine  of  $25  (2996). 
For  making  a  false  return,  $100  (3000).    See  also  penalties  under  5c. 

b.  The  local  record. — The  date  of  marriage  and  the  name  of  the  celebrant 
must  be  entered  by  the  clerk  in  the  marriage  record  book  (2996).  The  local 
registrar  shall  make  three  copies  of  each  marriage  certificate  returned  to  him — 
one  for  himself,  one  for  the  state  registrar  and  one  for  the  county  recorder  (803). 
He  shall  file  his  own  copies  and  make  quarterly  returns  to  the  recorders,  and  the 

62 


LAWS  BY  STATES 

files  of  the  latter  shall  be  accessible  at  all  times  to  physicians,  clergymen  and 
lawyers  without  charge  (804). 

c.  State  record. — Within  24  hours  the  issuer  must  notify  the  state  registrar 
of  each  license  issued  (816).  There  is  a  special  provision  regarding  New  Castle 
County  (2996).  Within  24  hours  after  the  marriage  the  celebrant  must  report 
it  to  the  state  registrar,  this  report  in  no  way  to  relieve  him  of  the  responsibility 
for  filing  a  certificate  with  the  local  registrar  (814).  The  certificates  filed  with 
the  local  registrar  are  to  be  returned  by  him  quarterly  to  the  state  registrar  and 
permanently  bound  and  preserved  (802;  804).  Penalties. — For  failure  by  the 
celebrant  to  comply  with  the  provision  relating  to  return  to  the  local  and  state 
registrar  a  fine  of  from  $5  to  $25  (818).  Whoever  shall  violate  any  of  the  pro- 
visions of  the  chapter  on  state  registration  shall  be  fined  from  $5  to  $100  (806). 
For  failure  by  the  local  registrar  to  perform  any  of  the  duties  imposed  upon  him, 
he  shall  be  fined  from  $10  to  $100,  or  imprisoned  not  over  50  days,  or  both  (806); 
for  failure  to  make  prompt  returns  he  shall  be  removed  from  office  in  addition  to 
any  other  penalties  (800). 

6.  INTER-STATE  RELATIONS 

If  a  marriage  within  the  prohibited  degrees,  or  of  a  white  person  with  a  negro 
or  mulatto,  or  of  a  pauper  or  person  of  unsound  mind,  is  contracted  outside  of  the 
state  and  the  parties  afterwards  live  together  within  the  state,  they  shall  be  pun- 
ished in  the  same  manner  as  if  the  marriage  had  been  contracted  in  Delaware 
(2992). 

7.  CERTAIN  OTHER  PROHIBITIONS 

Marriage  between  whites  and  negroes  or  mulattoes;  between  paupers;  between 
a  person  of  a  sound  mind  and  an  idiot  or  insane  person.  These  marriages  are 
punishable  (2992). 

DISTRICT  OF  COLUMBIA 

Authorities. — Meyers*  Code  of  191 1  (references  are  to  its  sections) ; 
Laws  through  1917. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  probably  valid.  They  have  not  been  declared  invalid  by 
statute  (Travers  v.  Reinhardt,  25  App.  D.  C,  567,  and  Meister  v.  Moore,  96  U.  S. 
76). 

2.  MARRIAGEABLE  AGE 
Males,  16;  females,  14  (1285).    Marriages  below  these  ages  are  void  from  the 
time  their  nullity  is  declared  by  court.    Suit  may  be  brought  by  the  parent  or 
guardian,  or  by  the  person  below  the  marriageable  age  through  a  next  friend 
(1286). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — No  one  shall  solemnize  a  marriage  without  having  a  license 
delivered  to  him  (1290). 

b.  Where  obtained. — From  the  clerk  of  the  supreme  court  (1290). 

c.  Advance  notice,  objections,  etc. — No  provision.  ^• 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18.  It 
must  be  given  either  personally  to  the  clerk  or  in  writing  attested  by  a  witness  and 
proved  to  the  satisfaction  of  the  clerk  (1292). 

e.  Form  of  license. — It  must  be  addressed  to  the  celebrant  by  name  (1293). 

f.  Record  of  license. — Required  (1295). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — The  issuer  must  examine  the  appli- 

63 


AMERICAN  MARRIAGE  LAWS 

cant  under  oath  as  to  the  applicants'  names,  ages,  color,  relationship,  if  any, 
whether  previously  married,  and  the  names  of  their  parents.  Penalty. — False 
testimony  is  deemed  perjury  (1291). 

4.  SOLEMNIZATION 

a.  The  celebrant. — ^A  judge  or  justice  of  any  court  of  record;  a  justice  of  the 
peace;  a  minister  of  the  gospel,  appointed  or  ordained  according  to  the  ceremonies 
of  his  church,  resident  anywhere  in  the  United  States  or  its  territories  who  has 
been  authorized  by  a  justice  of  the  supreme  court  of  the  District  of  Columbia  to 
celebrate  marriage;  certain  religious  societies  according  to  their  customs  (1288). 
Penalty. — Any  one  who  undertakes  to  solemnize  marriage  when  not  authorized 
by  law  to  do  so  is  subject  to  a  penalty  of  not  more  than  $500  (1289-90). 

b.  Presentation  of  license. — Required.  It  must  be  addressed  to  the  celebrant 
by|name.    Penalty.  — For  not  requiring  it,  a  fine  of  not  over  $500  (1290). 

c.  Form  of  ceremony. — No  provision. 

,  d.  Other  requirements  and  prohibitions. — None. 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  certificate  executed  by  the  cele- 
brant must  be  returned  to  the  issuer  within  10  days  (1293).  Penalty. — For  failure 
to  make  the  required  return,  a  fine  of  $50  (1294). 

b.  Local  record. — To  be  kept  by  the  issuer  of  the  license  (1295). 

6.  INTER-STATE  RELATIONS 

If  a  person  having  and  retaining  a  domicile  in  the  District  of  Columbia,  and 
forbidden  by  its  laws  to  marry,  contracts  marriage  in  another  jurisdiction,  the 
marriage  shall  be  deemed  illegal  and  may  be  decreed  to  be  void  in  the  District 
in  the  same  manner  as  if  it  had  been  celebrated  therein  (1287). 

7.  CERTAIN  OTHER  PROHIBITIONS 

The  marriage  of  an  idiot  or  insane  person  (1285). 


FLORTOA 

Authorities. — Compiled  laws  of  1914  (references  are  to  its  sections 
unless  otherwise  specified);  Laws  through  1915. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  recognized  (Caras  v.  Hendrix,  62  Fla.  446). 

2.  MARRIAGEABLE  AGE 

No  provision.  But  it  is  unlawful  to  contract  a  clandestine  marriage  with  a 
girl  under  16  years  of  age  (3522).  The  common  law  ages  control — 14  for  males 
and  12  for  females  (Green  v.  Green,  80  Sou.  739,  Fla.). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — The  celebrant  must  require  the  presentation  of  the  license 
(2576). 

b.  Where  obtained. — From  the  county  judge  of  the  county  wherein  the 
woman  resides  (2574). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  any  one  under  21  unless  previously  mar- 
ried.   The  issuer  must  require  satisfactory  evidence  (2574). 

64 


LAWS  BY  STATES 

e.  Form  of  license. — No  special  provision. 

f.  Record  of  license. — Required  (2577). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — It  is  the  duty  of  the  issuer  to  grant 
a  license  if  there  appears  to  be  no  impediment  to  the  marriage  (2574).  Penalty. — 
For  knowingly  issuing  a  license  for  a  miscegenetic  marriage  a  fine  of  $1,000  (2581), 
imprisonment  for  not  over  two  years  or  a  fine  of  not  over  $1,000  (3530). 

4.  SOLEMNIZATION 

a.  The  celebrant. — ^Any  judicial  officer  or  notary  public  of  the  state;  any 
regularly  ordained  minister  of  the  gospel  in  communion  with  some  church  (2575). 

b.  Presentation  of  license. — Required  (2576). 

c.  Form  of  ceremony. — No  provision. 

d.  Other  requirements  and  prohibitions. — The  celebrant  is  subject  to  a  fine 
of  $1,000  for  solemnizing  a  miscegenetic  marriage  (2582);  to  imprisonment  of  not 
over  one  year  or  a  fine  of  not  over  $1,000  (3531). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  must,  within  10  days, 
make  a  certificate  of  the  marriage  on  the  license  and  return  the  latter  to  the 
issuer  (2576). 

b.  Local  record. — The  name  of  celebrant  and  date  of  marriage  must  be  entered 
on  the  marriage  license  record  and  the  license  and  certificate  filed  (2577). 
{4*tc.  State  record. — No  provision  though  the  state  board  of  health  is  authorized 
tocompile  "statistics"  of  marriages  (1144). 

6.  INTER-STATE  RELATIONS 

No  provision. 

7.  CERTAIN  OTHER  PROHIBITIONS 

Marriage  between  a  white  person  and  a  person  of  one-eighth  or  more  negro 
blood  (2579). 

GEORGIA 

Authorities. — Park's  Code  of  1914  (references  are  to  sections  of 
the  civil  code  unless  otherwise  specified) ;  Supplement  of  1917 ;  Laws 
of  1918. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  recognized  (Drawdy  v.  Hesters,  130  Ga.  168;  Smith  v. 
Smith,  84  Ga.  440;  Clark  v.  Cassldy,  64  Ga.  662). 

2.  MARRIAGEABLE  AGE 

Males,  17;  females,  14  (2931).  Such  marriages  may  be  ratified  after  arriving 
at  the  prescribed  age  (84  Ga.  440). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — The  celebrant  must  require  presentation  of  the  license.  But 
publication  of  banns  may  take  the  place  of  a  license  (2939). 

b.  Where  obtained. — From  the  ordinary  of  the  county  where  the  female  re- 
sides, if  resident  in  the  state  (2936).  No  provision  if  she  is  non-resident.  Penalty. 
— For  knowingly  issuing  a  license  for  the  marriage  of  a  female  domiciled  in  another 
county,  a  forfeit  of  $500  (2938). 

5  65 


AMERICAN  MARRIAGE  LAWS 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  females  under  18.  The  issuer  must  inquire 
as  to  the  ages  of  the  applicants,  and  if  there  is  any  ground  for  suspicion  that  the 
female  is  under  18  years  must  refuse  to  grant  the  license  without  parental  consent  in 
writing  (2938).     Penalty.— For  violation/a  forfeit  of  $500  for  each  offense  (2938). 

e.  Form  of  license. — It  authorizes  the  marriage  (2936) . 

f.  Record  of  license. — Required  (2936). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — Knowingly  issuing  a  license  for  a 
miscegenetic  marriage  is  a  misdemeanor  (678,  Penal  Code). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  judge  or  justice  of  the  peace;  a  minister  of  the  gospel 
(2936);  any  Jewish  minister  or  other  person  of  any  religious  society  authorized 
by  the  rules  thereof  to  perform  the  marriage  ceremony  (2940) ;  an  ordained  colored 
minister  of  the  gospel  between  persons  of  African  descent  only  (2179). 

b.  Presentation  of  license. — Required.  Penalty. — For  solemnizing  without  a 
license  or  the  publication  of  banns,  the  celebrant  shall  forfeit  $500  (2939). 

c.  Form  of  ceremony. — No  provision. 

d.  Other  requirements  and  prohibitions. — Knowingly  solemnizing  a  mis- 
cegenetic marriage  or  the  marriage  of  an  idiot,  lunatic  or  any  person  subject  to 
any  other  disability  which  would  render  the  marriage  contract  illegal  is  a  mis- 
demeanor (677-678,  Penal  Code). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  must  return  the  license 
to  the  issuer  together  with  his  certificate  (2936;  2940).  In  the  case  of  a  marriage 
preceded  by  publication  of  banns,  the  celebrant  shall  certify  the  fact  to  the 
ordinary  of  the  county  where  the  banns  were  published  (2937). 

b.  Local  record. — The  certificate  is  to  be  recorded  by  the  issuer  of  the  license 
(2936) ;  also  the  certification  of  a  marriage  preceded  by  the  publication  of  banns 
(2937). 

c.  State  record. — No  provision. 

6.  INTER-STATE  RELATIONS 

All  marriages  contracted  in  another  state  by  persons  intending  to  reside  in 
Georgia  shall  have  the  same  legal  effect  as  if  solemnized  in  Georgia.  Residents  of 
the  state  "cannot  evade"  its  laws  by  marrying  elsewhere  (2943). 

7.  CERTAIN  OTHER  PROHIBITIONS 

Marriages  between  white  persons  and  negroes  are  prohibited  and  void  (2941). 
To  be  able  to  contract  marriage,  a  person  must  be  of  sound  mind  (2931). 


IDAHO 

Authorities. — Revised  Code  of  1908  (references  are  to  its  sections 
unless  otherwise  indicated);  Laws  through  1917. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  recognized  (2611). 

2.  MARRIAGEABLE  AGE 

No  provision. 

66 


LAWS  BY  STATES 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — A  celebrant  is  subject  to  a  penalty  for  solemnizing  a  marriage 
without  a  license  (2634). 

b.  Where  obtained. — From  the  county  recorder  of  any  county  in  the  state 
(2629). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Parental  consent  is  not  required  for  the  issuance  of  a 
license  except  under  the  general  provision  as  to  competency  shown  below  in  3h. 
Marriages  under  18,  if  without  parental  consent,  may  be  annulled  at  the  suit  of  a 
parent  at  any  time  before  such  minor  has  reached  the  prescribed  age  or  at  the 
suit  of  the  minor  within  four  years  after  arriving  at  such  age,  unless  the  marriage 
has  been  recognized  since  (2640-41). 

e.  Form  of  license. — It  must  give  the  names  and  addresses  of  the  parties  (2629). 

f.  Record  of  license. — No  provision. 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — If  the  issuer  does  not  know  of  his 
own  knowledge  that  the  parties  are  competent  under  the  laws  of  the  state  to  con- 
tract matrimony  he  shall  take  the  affidavit  in  writing  of  the  applicant  and  of  other 
persons  as  he  may  see  proper  which  shall  be  his  warrant  against  any  fine  or  for- 
feiture (2631).  Penalties. — For  issuing  a  license  for  the  marriage  of  a  person 
legally  incompetent,  a  fine  of  $100  (2631).  Any  person  who  swears  falsely  to  any 
material  fact  as  to  competency  is  deemed  guilty  of  perjury  (2632). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  justice  of  the  supreme  court;  district  or  probate  judge; 
justice  of  the  peace;  mayor,  or  the  governor  (2622);  a  priest  or  minister  of  the 
gospel  of  any  denomination  (2622).  Penalty. — Every  person  who  undertakes  to 
join  others  in  marriage  knowing  that  he  is  not  authorized  by  law  to  do  so  is  guilty 
of  a  misdemeanor  (7092). 

b.  Presentation  of  license. — Required.  Penalty. — For  solemnizing  a  marriage 
without  a  license,  a  fine  of  from  $50  to  $200  (2634). 

c.  Form  of  ceremony. — The  parties  must  declare  in  the  presence  of  the  cele- 
brant that  they  take  each  other  as  husband  and  wife  (2623). 

d.  Other  requirements  and  prohibitions. — The  celebrant  must  ascertain  the 
identity  of  the  parties,  their  real  and  full  names,  and  places  of  residence,  that  they 
are  of  marriageable  age,  that  parental  consent  has  been  given  if  either  party  is 
under  18  and  not  previously  married  and  that  there  is  no  legal  impediment  (2621); 
and  he  may  administer  oaths  and  examine  witnesses  for  the  above  facts  (2624). 
Penalty. — For  solemnizing  a  marriage  with  the  knowledge  that  either  party  is 
legally  incompetent,  a  fine  of  from  $50  to  $200  (2634). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  license  and  certificate  attached 
thereto,  duly  executed  by  the  celebrant,  shall  be  returned  by  him  to  the  issuer 
within  30  days  after  solemnization  (2630).  Penalties. — For  failure  to  make 
return,  a  fine  of  from  $20  to  $50  (2630).  For  wilfully  making  a  false  return,  a  fine 
of  not  less  than  $100  and  imprisonment  for  not  less  than  three  months  (2638). 

b.  Local  record. — The  recorder  must  register  each  marriage  return  within  one 
month  after  receiving  it  (2635).  Penalties. — For  failure  to  record  within  the 
specified  time,  a  forfeit  of  $100  (2635).  For  wilfully  recording  a  false  return,  a 
fine  of  not  less  than  $100  and  imprisonment  for  not  less  than  three  months  (2638). 

c.  State  record. — The  county  recorder  must  transmit  every  three  months  to  the 
secretary  of  the  state  board  of  health  a  certified  abstract  of  the  register  of  mar- 
riages prepared  in  the  manner  prescribed  by  the  secretary  and  upon  blanks  fur- 
nished by  him  (Sec.  1091,  amended  by  the  laws  of  1911,  p.  645). 

67 


AMERICAN  MARRIAGE  LAWS 


6.  INTER-STATE  RELATIONS 


All  marriages  contracted  without  the  state  which  would  be  valid  by  the  laws 
of  Jhe  country  in  which  they  were  contracted  are  valid  in  Idaho  (2619). 

7.  CERTAIN  OTHER  PROHIBITIONS 

Marriage  between  whites  and  negroes  or  mulattoes  (2616). 


ILLINOIS 

Authorities. — Revised  Statutes  of  1915-1916  (references  are  to  its 
chapters  and  sections). 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  not  recognized.  They  are  null  and  void  unless  the  parties 
subsequently  contract  a  licensed  and  solemnized  marriage  (89:4). 

2.  MARRIAGEABLE  AGE 

Males,  18;  females,  16  (89:3).  A  court  will  annul  a  marriage  below  these  ages 
on  the  application  of  either  of  the  parties  before  reaching  the  ages  of  consent,  but 
if  such  annulment  is  not  asked  until  after  both  parties  have  reached  the  ages  re- 
spectively fixed  by  the  statute,  the  marriage  is  binding  (Matthes  v.  Matthes, 
198  111.  Appellate,  515). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — ^AU  persons  intending  to  be  joined  in  marriage  shall  obtain  a 
license  (89 :6) ;  but  a  license  need  not  be  obtained  when  intention  to  marry  has  been 
published,  in  the  case  of  certain  religious  societies,  by  a  week's  notice  to  a  standing 
committee  of  the  society  (89:15). 

b.  Where  obtained. — From  the  county  clerk  of  the  county  where  the  marriage 
is  to  take  place  (89:6). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18. 
It  must  be  given  personally  before  the  issuer.  The  parent  must  also  make 
affidavit  as  to  the  age  and  place  of  birth  and  residence  of  the  minor,  and  must 
give  such  other  proof  as  the  clerk  may  require  (89:3).  Penalty. — For  false  testi- 
mony as  to  age,  a  fine  of  from  $100  to  $1,000  or  imprisonment  for  not  more  than 
one  year  or  both  (89:6).    For  issuing  a  license  contrary  to  provisions,  see  3h. 

e.  Form  of  license. — This  must  show  names,  ages  and  residence,  and  if  either 
party  is  a  minor,  the  fact  of  parental  consent  (89:7). 

f.  Record  of  license. — No  provision. 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — For  the  purpose  of  ascertaining  the 
age  of  the  parties  and  the  legality  of  the  marriage  the  issuer  shall  obtain  affidavits 
of  one  or  both  parties  to  the  marriage  and  of  any  other  person,  and  he  may  examine 
witnesses  under  oath  (89:6;  8).  Penalties. — For  knowingly  issuing  a  license  for 
the  marriage  of  persons  who  are  legally  incompetent  to  contract  marriage,  a  fine 
of  from  $100  to  $500  for  each  offense  (89:13).  Any  one  swearing  falsely  to  any 
material  matter  in  a  required  affidavit  may  be  fined  from  $100  to  $1,000,  or 
imprisoned  for  not  more  than  one  year,  or  both  (89:6). 

Before  issuing  the  license  to  a  resident  of  another  state  the  issuer  shall  satisfy 
himself  by  required  affidavits  or  otherwise  that  such  marriage  is  not  prohibited 
by  the  laws  of  the  state  where  the  applicant  resides  (89:21).  Penalty. — Issuing  a 
license  with  the  knowledge  that  the  persons  are  thus  prohibited  from  intermarrying 
is  a  misdemeanor  (89 :22). 

68 


LAWS  BY  STATES 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  judge  of  any  court  of  record;  justice  of  the  peace  or 
superintendent  of  any  public  institution  for  the  deaf  and  dumb;  a  minister  of  the 
gospel  in  regular  standing;  a  Society  of  Friends  (89:4);  any  religious  society  of 
which  the  parties  are  members  according  to  its  rules  (89:5).  Penalty. — For 
undertaking  to  solemnize  marriage  when  not  legally  authorized  to  do  so,  a  fine  of 
not  over  $500  and  imprisonment  from  one  day  to  two  years  (38:102 >^). 

b.  Presentation  of  license. — Required  (89:16).  Penalty. — A  celebrant  who 
solemnizes  a  marriage  without  a  license  is  subject  to  a  forfeit  of  $100  (89:15). 
This  does  not  apply  in  the  case  of  Quakers. 

c.  Form  of  ceremony. — No  provision  except  in  the  case  of  Quakers,  who  after 
giving  a  week's  notice  to  a  standing  committee  may  appear  in  a  public  meeting  or 
private  gathering  before  official  witnesses  with  a  form  of  certificate  to  be  signed  by 
the  contracting  parties  and  official  witnesses  and  to  be  publicly  read  by  one  of  the 
witnessing  parties  and  afterward  duly  recorded  upon  the  records  of  an  organized 
hieeting  of  the  society  (89:4). 

d.  Other  requirements  and  prohibitions. — It  is  a  misdemeanor  to  solemnize 
the  marriage  of  a  non-resident  who  would  be  prohibited  from  contracting  such 
marriage  by  the  laws  of  his  own  jurisdiction  (89:22). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — ^The  celebrant,  or  clerk  of  a  religious 
society,  shall  within  30  days  after  solemnization  make  a  certificate  of  the  marriage 
and  return  it  together  with  the  license,  if  one  has  been  issued,  to  the  clerk  of  the 
county  in  which  the  marriage  took  place  (89:9).  Penalty. — For  failure  to  make 
this  return  a  forfeit  of  $100  (89:16). 

b.  Local  record. — The  county  clerk  must  register  and  preserve  the  certificate 
(89:11).  Penalty. — For  failure  to  register  it  within  30  days  a  forfeit  of  $100 
(89:14). 

c.  State  record. — Required.  The  county  clerks  must  report  annually  to  the 
secretary  of  the  state  board  of  health  (Hurd's  Revised  Statutes,  1917,  Ch.  111>^, 
Sees.  8  and  9). 

6.  INTER-STATE  RELATIONS 

If  a  person  who  intends  to  remain  a  resident  of  Illinois,  and  who  is  forbidden 
by  its  laws  to  marry,  contracts  marriage  elsewhere,  the  marriage  is  void  in  Illinois. 
If  a  person  who  intends  to  remain  a  resident  of  some  other  jurisdiction,  and  who  is 
forbidden  to  marry  by  its  laws,  contracts  marriage  in  Illinois,  the  marriage  is 
void  (89:19-25).    Penalties.— See  3h  and  4d. 

7.  CERTAIN  OTHER  PROHIBITIONS 

Insane  persons  and  idiots  are  incapable  of  contracting  marriage  (89:2). 


INDL/INA 

Authorities. — Burns'  Statutes  of  1914  (references  are  to  its  sec- 
tions unless  otherwise  specified) ;  Supplement  of  1918. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  recognized.  (Teter  v.  Teter,  101  Ind.  129;  Franklin  v.  Lee, 
30  Ind.  App.  31). 

2.  MARRIAGEABLE  AGE 

Males  18;  females  16  (8357).    Such  marriages  may  be  annulled  on  application 
of  the  incapable  party  (1060  and  Henneger  v.  Lomas,  145  Ind.  287). 

69 


AMERICAN  MARRIAGE  LAWS 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — Before  any  persons,  except  members  of  the  Society  of 
Friends,  shall  be  joined  in  marriage  they  shall  produce  a  license  (8362). 

b.  Where  obtained. — From  the  clerk  of  the  circuit  court  of  the  county  in 
which  the  woman  resides^  (8362). 

c.  Advance  notice,  objections,  etc. — No  requirement.  Provision  is,  however, 
made  for  a  hearing  of  applications  in  court,  where  the  clerk  feels  it  necessary  to 
refuse  to  issue  a  license.  Such  hearing  shall  be  without  delay  or  expense  to  the 
applicants  (8366). 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18. 
Where  there  is  no  parent  resident  in  the  state  and  the  female  has  resided  in  the 
county  where  the  license  is  sought  to  be  obtained  for  one  month  preceding  applica- 
tion, license  may  be  issued  without  consent  (8371).  An  affidavit  of  these  facts 
made  by  some  disinterested  person  is  sufficient  to  justify  the  clerk  in  issuing  the 
license  (8372).    Penalty.— See  3i. 

e.  Form  of  license. — It  must  state  the  names  of  the  parties  (8362). 

f.  Record  of  license. — Required  and  open  to  public  inspection  (8363). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — The  application  must  show  the 
names,  occupation,  birthplace,  residence  and  ages  of  the  parties,  whether  the 
marriage  is  the  first,  second  or  other  marriage,  together  with  the  names,  residence, 
occupation  and  birthplace  of  their  parents  including  the  maiden  name  of  the 
mother  and  such  other  facts  as  may  be  necessary  to  determine  whether  any  legal 
impediment  to  the  proposed  marriage  exists  (8363).  Members  of  the  old  Amish 
Mennonite  Church  instead  of  answering  these  questions  under  oath  or  affirmation 
may  have  the  bishop  of  their  congregation  appear  and  sign  a  statement  that  the 
answers  are  true  (Sup.  8363). 

No  license  shall  be  issued  when  either  of  the  contracting  parties  is  an  imbecile, 
epileptic,  of  unsound  mind,  or  to  any  male  person  who  has  within  five  years  been 
an  inmate  of  any  county  asylum  or  home  for  indigent  persons,  unless  it  satis- 
factorily appears  that  the  cause  of  such  condition  has  been  removed  and  that 
the  applicant  is  able  to  support  a  family  and  likely  to  so  continue;  nor  when 
either  party  is  afflicted  with  a  transmissible  disease  or  at  the  time  of  making 
application  is  under  the  influence  of  intoxicating  liquor  or  narcotic  drugs  (8365). 
Penalty. — Whoever  procures  the  issuance  of  a  license  by  any  false  statement, 
representation  or  pretense,  shall  be  fined  not  over  $500  (8368).      See  also  3i. 

i.  Penalties  not  shown  above. — For  issuing  a  license  contrary  to  the  provisions 
the  issuer  shall  be  fined  from  $25  to  $100  (8370).  For  issuing  contrary  to  pro- 
visions, such  sum  as  a  jury  may  determine  (8375). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  judge  of  a  court  of  record;  justice  of  the  peace  or  mayor 
within  their  respective  counties  (8361);  a  minister  of  the  gospel  or  priest  of  any 
church  throughout  the  state;  Friends  and  German  Baptists  according  to  the 
rules  of  their  societies  (8361).  Penalty. — For  solemnizing  marriage  without 
authority  to  do  so,  $50  to  $500,  to  which  may  be  added  imprisonment  for  from 
10  days  to  three  months  (2655). 

b.  Presentation  of  license. — Required  (8362).  Penalty. — For  solemnizing 
without  a  license  a  fine  of  not  over  $500  (8369). 

c.  Form  of  ceremony. — No  provision. 

d.  Other  requirements  and  prohibitions. — For  solemnizing  the  marriage  of 
persons  forbidden  by  law  to  marry,  the  celebrant  is  subject  to  a  fine  of  from  $50 
to  $500,  to  which  may  be  added  imprisonment  in  the  county  jail  for  from  10  days 
to  three  months  (2655) ;  for  solemnizing  marriage  contrary  to  the  provisions,  a 
fine  of  not  over  $500  (8376). 

70 


LAWS  BY  STATES 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  must  report  the  marriage 
within  three  days  to  the  issuer  (7607).  He  must  also  within  three  months  file  a 
certificate  in  the  clerk's  office  in  the  county  in  which  the  marriage  was  solemnized 
(8374).  Penalty. — For  failure  to  return  license  and  certificate  within  three 
months,  $5  to  $100  (2656). 

b.  Local  record. — The  return  is  to  be  recorded  together  with  the  application 
(8363). 

c.  State  record. — The  clerks  of  the  circuit  courts  shall  make  monthly  reports 
to  the  county  health  commissioners  (7607)  who  shall  report  to  the  State  Board  of 
Health  (7608). 

6.  INTER-STATE  RELATIONS 

No  provision,  except  that  residents  of  the  state  are  forbidden  to  marry  out  of 
the  state  in  order  to  evade  the  provisions  shown  under  3h,  and  such  marriages  are 
declared  void  (8367). 

7.  CERTAIN  OTHER  PROHIBITIONS 

Marriages  between  white  persons  and  negroes;  of  an  insane  person  or  idiot 
(8360).    Such  marriages  are  void  (1059;   8359). 


IOWA 

Authorities. — Code  of  1897  (references  are  to  its  sections  unless 
otherwise  specified);  Wilcox's  Supplement  of  1913;  Laws  through 
1917. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  recognized  (Blanchard  v.  Lambert,  43  Iowa  228;  McFar- 
land  v.  McFarland,  51  Iowa  565). 

2.  MARRIAGEABLE  AGE 

No  provision,  but  males  above  16  and  females  above  14  may  marry.  Mar- 
riages under  this  age  may  be  annulled  on  suit  by  the  non-aged  party  (3140). 
This  law,  however,  does  not  repeal  the  common  law  rule  fixing  the  age  of  marriage 
consent  at  14  for  males  and  12  for  females.  The  statute  is  merely  cumulative 
(Goodwin  v.  Thompson,  2  G.  Gr.  329). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — For  permission  to  solemnize  a  marriage,  except  in  the  case 
of  members  of  certain  denominations,  a  license  for  that  purpose  must  be  obtained 
(3148). 

b.  Where  obtained. — From  the  clerk  of  the  district  court  of  the  county  where 
the  marriage  is  to  be  solemnized  (3141). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18 
(3143  and  3188).  It  must  be  in  writing,  acknowledged  or  proved  to  be  genuine 
(3143).  Penalty. — Issuing  a  license  without  parental  consent  is  a  misdemeanor 
(3144).  Any  one  who  makes  a  false  certificate  of  parental  consent  is  guilty  of 
perjury  (3143). 

e.  Form  of  license. — No  provision. 

f.  Record  of  license. — Required  (3142). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — Unless  the  clerk  is  acquainted  with 

71 


AMERICAN  MARRIAGE  LAWS 

the  age  and  qualifications  of  the  parties  he  must  take  the  testimony  of  competent 
witnesses  (3142).  He  is  forbidden  to  issue  a  license  when  either  party  is  dis- 
qualified from  making  any  other  civil  contract  or  when  the  parties  are  under  the 
marriageable  age  (3141). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  justice  of  the  peace;  judge  of  the  supreme,  district  or 
superior  court;  mayor  of  the  city  or  town  wherein  the  marriage  takes  place;  a 
minister  of  the  gospel  ordained  or  licensed  according  to  the  usages  of  his  denomina- 
tion (3145);  any  denomination  having  peculiar  modes  of  entering  the  marriage 
relation  (3148). 

b.  Presentation  of  license. — No  provision. 

c.  Form  of  ceremony. — No  provision. 

d.  Other  requirements  and  prohibitions. — If  a  marriage  is  solemnized  without 
parental  consent  where  required,  the  parties  marrying  and  all  persons  aiding  them 
are  guilty  of  a  misdemeanor  (3144). 

Marriages  solemnized  with  the  consent  of  parties  in  any  other  form  than 
prescribed  are  valid,  but  the  parties  and  all  persons  aiding  them  shall  forfeit  the 
sum  of  $50  each,  but  this  shall  not  apply  to  the  celebrant  if  within  15  days  he 
makes  the  required  return  (Sup.  3147). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  must  file  a  certificate 
within  15  days  with  the  clerk  of  the  district  court  (3146).  When  the  marriage  is 
solemnized  without  a  celebrant  the  certificate  is  to  be  filed  by  the  husband  (3149). 

b.  Local  record. — ^The  clerk  must  record  all  marriages  (Sup.  2575-al6). 

c.  State  record. — ^The  clerk  shall  report  annually  to  the  state  registrar  "respect- 
ing such  marriages"  (Sup.  2575-al6).  The  state  registrar  writes  that  the  issuing 
clerks  furnish  to  him  "transcripts  of  the  records  of  marriage." 

6.  INTER-STATE  RELATIONS 
No  provision. 

KANSAS 
Authorities. — General  Statutes  of  1915  (references  are  to  its  sec- 
tions unless  otherwise  specified) ;  Laws  through  1917. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  recognized,  but  those  contracting  them  are  subject  to  a 
fine  or  imprisonment  (State  v.  Walker,  36  Kan.  297). 

2.  MARRIAGEABLE  AGE 

Males  15;  females  12  (3609). 

3.  THE  MARRLA.GE  LICENSE 

a.  Requirement. — A  license  is  to  be  issued  to  any  person  legally  entitled  to  it 
(6139).     Friends  are  not  required  to  obtain  a  license. 

b.  Where  obtained. — From  the  probate  judge  (6139). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18.  It 
must  be  given  in  person  or  in  writing  duly  attested  (6139).  The  issuer  may  issue 
the  license  upon  affidavit  of  the  applicant  or  some  responsible  person  for  him  that 

72 


LAWS  BY  STATES 

the  parties  are  of  lawful  age.    Penalty. — Any  one  swearing  falsely  to  an  affidavit 
that  the  parties  are  of  age  shall  be  fined  not  over  $500. 

Males  under  18  or  females  under  16  years  of  age  must  have,  besides  parental 
consent,  the  consent  of  the  probate  judge  (6139). 

e.  Form  of  license. — The  license  authorizes  the  marriage  of  the  persons  named 
and  shows  the  fact  of  parental  consent,  when  required  (6139). 

f.  Record  of  license. — Required  (6147). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — The  applicant  rnust  make  affidavit 
that  the  marriage  is  not  within  the  prohibited  degrees,  and  the  issuer  may  examine 
the  witnesses  in  his  discretion.  Penalties. — For  failure  to  examine  the  applicants, 
as  provided,  the  issuer  is  liable,  in  case  the  parties  are  not  legally  entitled  to  the 
license,  to  a  fine  of  not  over  $1,000  (6149).  For  knowingly  issuing  a  license  for  an 
incestuous  marriage,  a  fine  of  from  $100  to  $1,000,  or  imprisonment  from  three 
months  to  five  years,  or  both,  in  the  discretion  of  the  jury  (6136). 

The  issuer  is  forbidden  to  grant  a  license  for  the  marriage  of  an  epileptic, 
imbecile,  feeble-minded  or  insane  person  unless  the  woman  is  over  the  age  of  45 
years  (6157).  Penalty. — A  fine  of  not  more  than  $1,000,  or  imprisonment  for  not 
over  three  years,  or  both  (6159). 

Further  penalties. — For  refusing  to  issue  a  license  to  a  person  legally  entitled 
thereto,  a  fine  of  not  over  $1,000  (6148).  For  failure  to  comply  with  any  of  the 
provisions  of  the  act,  a  fine  of  not  more  than  $100  (6145). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  judge  or  justice  of  the  peace;  a  licensed  minister  of  the 
gospel;  the  Society  of  Friends  in  the  form  in  use  in  their  meetings  (6151). 

b.  Presentation  of  license. — Required.  Penalty. — For  solemnizing  without  a 
license  the  celebrant  is  subject  to  a  fine  of  not  over  $1,000  (6137). 

c.  Form  of  ceremony. — No  provision. 

d.  Other  requirements  and  prohibitions. — Celebrants  are  forbidden  to  solem- 
nize the  marriage  of  an  epileptic,  feeble-minded,  imbecile  or  insane  person  unless 
the  woman  is  over  45  years  of  age.  Penalty, — For  violation,  a  fine  of  not  more 
than  $1,000,  or  imprisonment  for  not  more  than  three  years,  or  both  (6158). 

The  celebrant,  for  knowingly  solemnizing  an  incestuous  marriage,  is  subject 
to  a  fine  of  from  $100  to  $1,000,  or  imprisonment  from  three  months  to  five  years, 
or  both  (6136). 

For  solemnizing  a  marriage  where  either  party  is  under  the  age  of  legal  consent, 
or  with  knowledge  of  any  legal  impediment,  the  celebrant  shall  be  imprisoned  not 
over  one  year,  or  fined  not  less  than  $500,  or  both  (3617). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  shall,  within  10  days, 
return  the  license  with  his  certificate  endorsed  thereon  to  the  issuer  (Laws,  1917, 
p.  331).    Penalty. — For  failure  to  do  so,  a  fine  of  not  more  than  $100  (6145). 

b.  Local  record. — The  return  is  to  be  recorded  on  the  marriage  record  (Laws, 
1917,  p.  331).  Penalty. — For  failure  to  record  it  within  30  days,  a  fine  of  not 
over  $1,000  (6148). 

c.  State  record.— The  probate  judge  shall  forward  each  month  the  licenses  and 
certificates  of  marriage,  together  with  a  statement  showing  the  names  of  the 
parties  and  the  name  and  address  of  the  celebrant  to  the  state  registrar  (Laws, 
1917,  p.  33]).  Penalty. — For  failure  by  the  judge  to  comply  "with  any  of  the 
provisions  of  this  Act,"  a  fine  of  not  more  than  $100  (6145). 

6.  INTER-STATE  RELATIONS 

Marriages  valid  where  contracted  are  valid  in  Kansas  (6150),  but  this  does  not 
apply  to  bigamy  (3610). 

73 


AMERICAN  MARRIAGE  LAWS 

7.  CERTAIN  OTHER  PROHIBITIONS 

The  marriage  is  forbidden  of  a  child  born  after  the  parent  was  insane,  unless 
such  insane  parent  shall  have  been  discharged  from  the  state  hospital  more  than 
nine  months  before  the  birth  of  the  child  as  cured  and  remained  cured  for  the 
period  of  20  years  after  such  discharge  (6155),  but  such  persons  may  marry  if  the 
woman  is  over  45. 

KENTUCKY 

Authorities. — Carroll's  Statutes  of  1915,  Vols.  1  and  2  (references 
are  to  its  sections  unless  otherwise  specified) ;  Vol.  3,  containing 
Supplement  of  1918. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  not  recognized.  "Marriage  is  prohibited  and  declared 
void  ....  when  not  solemnized  or  contracted  in  the  presence  of  an 
authorized  person  or  society"  (2097).  There  is  an  exception  relating  to  ante- 
bellum marriages  among  negroes. 

2.  MARRIAGEABLE  AGE 

Males  14;  females  12  (2097). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — No  marriage  shall  be  solemnized  without  a  license  (2105). 

b.  Where  obtained. — From  the  clerk  of  the  county  in  which  the  female  resides 
at  the  time,  but  if  she  is  of  full  age  or  a  widow  and  it  is  issued  on  her  application  in 
person  or  in  writing,  the  license  may  be  obtained  in  any  county  (2105). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  any  one  under  21  years  of  age  unless 
previously  married  (2106).  It  must  be  given  in  person  or  in  writing  attested  by 
two  subscribing  witnesses  and  proved  by  the  oath  of  one  of  them  before  the  clerk 
(2106).  Penalty. — Any  one  falsely  personating  a  parent  or  guardian  shall  be 
confined  in  the  penitentiary  for  not  over  three  years  (2110). 

The  marriage  of  a  male  under  16  or  a  female  under  14,  when  contracted  with- 
out parental  consent,  may  be  declared  void  on  suit  of  a  next  friend  (2100). 

e.  Form  of  license. — It  must  show  the  age,  residence,  race,  birthplace,  parent- 
age, and  condition  whether  single,  widowed  or  divorced  of  each  party,  the  occupa- 
tion of  the  husband,  and  the  date  and  place  of  marriage. 

f.  Record  of  license. — No  provision. 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — Where  the  parties  are  personally 
unknown  to  the  clerk,  bond  must  be  given  in  the  penalty  of  $100,  with  condition 
that  there  is  no  lawful  cause  to  obstruct  the  marriage  (2106).  Penalties. — For 
knowingly  issuing  a  license  for  any  prohibited  marriage  the  clerk  shall  be  fined  from 
$500  to  $1,000  and  expelled  from  his  office;  for  knowingly  issuing  a  license  "con- 
trary to  his  duty  as  herein  prescribed  "  a  fine  of  not  over  $1,000.  If  the  license  is 
issued  by  a  deputy,  he  shall  be  fined  $1,000,  and  in  case  of  a  prohibited  marriage 
shall  be  imprisoned  for  not  more  than  one  year,  or  both  (2112). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  justice  of  the  county  court  and  such  justices  of  the 

peace  as  the  governor  or  the  county  court  may  authorize;  a  minister  or  priest  in 

regular  communion  with  any  religious  society  after  obtaining  a  license  therefor 

from  the  county  court  in  which  he  resides  and  giving  bond  as  required;  certain 

74 


LAWS  BY  STATES 

religious  societies  to  which  either  party  belongs  which  solemnize  marriage  by  con- 
sent given  in  the  presence  of  the  society  (2103-04).  Penalties. — For  solemniz- 
ing marriage  when  not  authorized  to  do  so,  imprisonment  in  the  penitentiary  for 
not  over  three  years  (2110).  For  a  breach  of  his  license  covenant  a  minister  may 
be  fined  not  exceeding  $2,000  (2104). 

No  person  shall  solicit  marriage  solemnizations  for  a  celebrant  for  compensa- 
tion, and  no  celebrant  shall  share  his  fee  with  such  person.  Penalty. — A  fine  of 
from  $10  to  $100  (2103). 

b.  Presentation  of  license. — For  solemnizing  a  marriage  without  a  license  the 
celebrant  is  subject  to  imprisonment  for  from  one  to  12  months  or  a  fine  of  not 
more  than  $1,000,  or  both  (2109). 

c.  Form  of  ceremony. — There  must  be  at  least  two  witnesses  (2107). 

d.  Other  requirements  and  prohibitions. — For  solemnizing  any  prohibited 
marriage,  the  celebrant  is  subject  to  imprisonment  for  from  one  to  12  months,  or  a 
fine  of  not  more  than  $1,000,  or  both  (2111). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  must  within  three  months 
return  the  license  to  the  issuer  with  a  certificate  of  the  marriage  (2107).  Penalty. 
— For  failure  to  make  return,  a  fine  of  $50. 

b.  Local  record. — The  license  and  certificate  must  be  filed  and  recorded  (2108). 

c.  State  record. — No  provision. 

6.  INTER-STATE  RELATIONS 

"Where  persons  resident  in  this  commonwealth  shall  marry  in  another  state, 
such  marriage  shall  be  valid  here  if  valid  in  the  state  where  solemnized"  (2101). 
Bigamous  and  incestuous  marriages  are  exceptions  (Dannelli  v.  Dannelli,  4  Bush 
51). 

7.  CERTAIN  OTHER  PROHIBITIONS 

The  marriage  of  white  persons  with  negroes  or  mulattoes;  of  an  idiot  or 
lunatic  (2096). 

LOUISIANA 

Authorities. — Civil  Code  of  1870  (references  are  to  Its  articles 
unless  otherwise  specified) ;  Marr's  Revised  Statutes  of  1915  (refer- 
ences are  to  its  sections);   Laws  through  1918. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  not  recognized.  The  law  recognizes  marriages  only  when 
they  are  contracted  and  solemnized  according  to  the  rules  which  it  prescribes  (88). 
See  also  Johnson's  Heirs  v.  Raphael,  117  La.  967.  But  a  marriage  without  a 
license  is  recognized  if  there  has  been  a  ceremony  before  three  witnesses  (Landry  v. 
Ballanger,  120  La.  965). 

2.  MARRIAGEABLE  AGE 

No  provision  except  that  celebrants  are  forbidden  to  solemnize  the  marriage  of 
a  male  under  14  or  a  female  under  12  (92). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — "Licenses    to    celebrate    marriages     ....     shall    be 

granted  by      .     .     .     ."     (R.  S.  4441). 

b.  Where  obtained. — From  the  clerk  of  the  court  of  the  parish  in  which  one  of 
the  parties  is  domiciled  (100),  which  must  also  be  the  parish  where  the  marriage 

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AMERICAN  MARRIAGE  LAWS 

is  to  be  celebrated  (104);  in  the  parish  of  Orleans  from  the  board  of  health  and 
judges  of  the  city  courts  (R.  S.  4441). 

c.  Advance  notice,  objections,  etc. — No  provision.    See  4d. 

d.  Parental  consent. — Required  for  minors — 21  years  for  both  sexes  according 
to  Article  37 — but  no  form  is  specified  (97).  Applicants  who  have  attained  the  age 
of  majority  must  furnish  proof  of  that  fact  (98). 

e.  Form  of  license. — The  license  is  directed  to  the  celebrant  (104). 

f.  Record  of  license. — Required,  and  is  to  be  a  public  record.  It  must  show  the 
names,  ages,  relationship  and  residence  of  the  parties,  whether  previously  married, 
and  if  so  the  name  of  the  former  husband  or  wife,  whether  dead  or  alive,  and  the 
names  and  residence  of  the  parents  (R.  S.  4465). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — The  intended  husband  must  give 
bond  with  security  in  a  sum  proportionate  to  his  means  with  condition  that  there 
exists  no  legal  impediment  to  the  marriage.  The  duration  of  the  security  is 
limited  to  two  years  (101).  The  issuer  must  require  affidavit  from  one  of  the 
parties  showing  that  they  are  not  related  within  the  prohibited  degrees  (R.  S. 
4440),  and  before  issuing  a  license  to  a  resident  of  another  state,  he  must  satisfy 
himself  that  such  person  is  not  prohibited  from  marrying  in  the  state  where  he 
resides  (R.  S.  4460).  Penalty. — For  violating  the  last  provision  the  issuer  is 
punishable  by  fine  or  imprisonment  (R.  S.  4461). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  justice  of  the  peace  within  his  parish  (103) ;  a  judge  of  a 
district  court  of  the  state  (R.  S.  4443) ;  any  minister  of  the  gospel  or  priest  of  any 
religious  sect,  whether  a  citizen  of  the  United  States  or  not  (102). 

b.  Presentation  of  license. — Required  (104).  Penalty. — A  fine  of  not  over 
$1,000  (R.  S.  4442). 

c.  Form  of  ceremony. — ^There  must  be  three  witnesses  of  full  age  (105). 
Penalty. — For  violation,  the  celebrant  is  punishable  by  a  fine  of  not  over  $1,000 
(R.  S.  4442). 

d.  Other  requirements  and  prohibitions. — In  case  of  opposition  to  the  mar- 
riage, if  it  be  supported  by  oath  of  the  party  making  it  and  by  reason  sufficient 
in  the  opinion  of  the  judge  to  authorize  suspension  of  the  marriage,  the  parties  shall 
be  notified  and  a  date  set  for  a  hearing  thereon  (106)  within  10  days  (107),  and 
if  the  opposition  is  over-ruled  the  person  making  it  must  pay  the  costs  (108). 

For  solemnizing  the  marriage  of  persons  prohibited  from  marrying  by  the  laws 
of  the  state  of  their  residence  the  celebrant  is  subject  to  a  fine  or  imprisonment  or 
both  in  the  discretion  of  the  court  (R.  S.  4461). 

The  celebrant  is  forbidden  to  solemnize  the  marriage  of  a  male  under  14  or  a 
female  under  12.  Penalty. — To  be  removed  from  office,  if  a  magistrate,  or 
deprived  forever  of  the  right  to  celebrate  marriage,  if  a  minister  (92). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — A  certificate  appended  to  the  license 
must  be  returned  by  the  celebrant  to  the  issuer  within  30  days  (105).  In  the 
parish  of  Orleans  the  celebrant  must  return  the  license  to  the  state  board  of 
health  after  having  endorsed  thereon  the  date  of  the  celebration  (R.  S.  648). 
Penalty. — For  failure  to  return  the  certificate  to  the  issuer  he  is  subject  to  a  fine 
of  not  over  $1,000  (R.  S.  4442).  ^      • 

b.  Local  record. — The  certificate  and  license,  when  returned  to  the  issuer, 
must  be  filed  and  recorded  by  him  (105;  R.  S.  4465).  Penalty. — For  violation  a 
fine  of  not  over  $1,000  (R.  S.  4442). 

c.  State  record. — Returns  are  made  annually  by  the  issuer  of  licenses  to  the 
secretary  of  the  state  board  of  health  upon  blanks  provided  by  the  state  board, 

76 


LAWS  BY  STATES 

showing  the  essential  facts  (R.  S.  4462).    Penalty. — For  failure  to  make  such 
returns  the  issuer  is  subject  to  a  forfeit  of  $100  (R.  S.  4463). 

6.  INTER-STATE  RELATIONS 

If  a  person  who  intends  to  remain  a  resident  of  Louisiana  and  who  is  forbidden 
by  its  laws  to  marry,  contracts  marriage  elsewhere,  the  marriage  is  void  in  Louis- 
iana, If  a  person  who  intends  to  remain  a  resident  of  some  other  jurisdiction  and 
who  is  forbidden  to  marry  by  its  laws,  contracts  marriage  in  Louisiana,  the 
marriage  is  void  (R.  S.  4458).    For  penalties  see  3h  and  4d. 

7.  CERTAIN  OTHER  PROHIBITIONS 

Marriages  between  whites  and  negroes  (R.  S.  4439). 


MAINE 
Authorities. — Revised  Statutes  of  1916  (references  are  to  its  pages 
unless  otherwise  specified) ;  Laws  of  1917. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  probably  not  recognized,  but  there  has  been  no  clear  deci- 
sion on  the  point.  See  S.  v.  Hodgskins,  19  Me.  155;  36  Am.  D.  743;  Ligonia  v. 
Buxton,  2  Me.  102;  and  Hiram  v.  Pierce,  45  Me.  367. 

2.  MARRIAGEABLE  AGE 

No  provision.  Apparently  the  common  law  ages  apply — 12  for  females  and 
14  for  males. 

3.  THE  MARRIAGE  LICENSE 

a.  Reqturement. — Residents  of  the  state  intending  to  be  joined  in  marriage 
shall  cause  notice  of  their  intention  to  be  recorded  (1011).    See  3c. 

b.  Where  obtained. — Notice  of  intention  must  be  filed  with  the  clerk  of  the 
town  in  which  each  party  resides;  if  only  one  resides  in  the  state,  in  the  town  in 
which  such  party  resides;  if  both  are  non-residents,  in  the  town  in  which  the 
marriage  is  to  be  solemnized  (1011). 

c.  Advance  notice,  objections,  etc. — Notice  of  intention  must  be  filed  five  days 
before  the  license  is  granted  except  upon  court  order  to  the  contrary,  or  in  the 
case  of  emergency,  at  the  authoritative  request  of  a  priest  or  attending  physician, 
or  when  either  of  the  parties  has  arrived  as  an  immigrant  within  five  days  (Laws, 
1917,  p.  77). 

Any  person  objecting  to  a  contemplated  marriage  may  file  a  caution  in  the 
office  of  the  issuer  who  shall  withhold  the  license  until  a  decision  is  made,  within 
seven  days  or  longer  at  their  discretion,  by  two  justices  of  the  peace,  approving 
the  marriage.  The  objection  may  be  made  before  the  notice  of  intention  has  been 
filed  (1011). 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18. 
It  must  be  in  writing  (1011)  if  they  have  parents  or  guardians  living  in  the  state. 
Penalty. — For  intentional  violation  by  issuer,  $20  (1011). 

e.  Form  of  license. — A  certificate  specifying  when  the  intentions  were  filed ;  it 
must  state  conspicuously  the  penalty  for  solemnizing  marriages  when  not  author- 
ized to  do  so  (1011). 

f.  Record  of  license. — Notice  of  intention  is  recorded  and  open  to  public 
inspection  (1011). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — The  issuer  is  forbidden  to  grant  a 

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AMERICAN  MARRIAGE  LAWS 

license  to  a  town  pauper  provided  the  overseers  of  the  poor  deposit  their  lists  of 
paupers  with  him.    Penalty.— $20  (1011). 

The  issuer,  for  deHvering  to  any  person  a  certificate  of  the  entry  of  intention 
of  marriage  (license)  knowing  it  to  be  false  in  any  particular,  is  subject  to  a  fine  of 
$100,  or  imprisonment  for  six  months  (1013);  for  falsely  stating  the  residence  of 
either  party,  to  a  forfeit  of  $20  (1011). 

i.  Penalties  not  shown  above. — Whoever  makes  false  representation  to  secure 
a  certificate  of  record  of  intentions  contrary  to  the  chapter  on  marriage  forfeits 
$100  (1011). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  justice  of  the  peace  or  notary  public;  women  otherwise 
eligible,  appointed  by  the  governor;  an  ordained  minister  of  the  gospel  engaged 
in  the  service  of  a  religious  body  to  which  he  belongs  or  a  person  licensed  to 
preach  by  an  association  of  ministers,  religious  seminary,  or  ecclesiastical  body, 
whether  a  resident  or  non-resident  of  this  state,  of  either  sex,  after  being  licensed 
by  the  secretary  of  state  (1012);  Quakers  according  to  their  forms  (1012).  Pen- 
alty.— For  solemnizing  when  not  authorized  to  do  so  or  when  forbidden  to  do  so  by 
reason  of  a  previous  offense  against  the  marriage  laws,  a  fine  of  not  over  $1,000,  or 
hard  labor  in  the  state  prison  for  not  over  five  years  (1012). 

b.  Presentation  of  license. — Required  (1011).    Penalty. — See  4d. 

c.  Form  of  ceremony. — No  provision. 

d.  Other  requirements  and  prohibitions. — The  celebrant,  for  knowingly  solem- 
nizing marriages  contrary  to  the  provisions  of  the  chapter  on  marriage,  is  subject 
to  a  fine  of  $100  and  forbidden  to  solemnize  any  marriages  thereafter  (1013). 

Whoever  makes  false  representations  to  procure  the  solemnization  of  a  marriage 
contrary  to  the  provisions  forfeits  $100  (1011). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  must  make  a  report 
of  the  marriage  on  a  record  furnished  to  him  by  the  state  board  of  health,  with 
full  data  as  to  the  contracting  parties,  and  file  copies  thereof  within  six  days  with 
the  clerk  of  the  town  in  which  the  marriage  intention  was  recorded  and  with  the 
clerk  of  the  town  in  which  the  marriage  was  solemnized  (1014).  When  the 
marriage  occurs  in  an  unincorporated  place  it  must  be  reported  to  the  town  clerk 
of  the  nearest  town  (1016).  Residents  of  the  state  marrying  elsewhere  must  file  a 
certificate  of  their  marriage  on  a  blank  furnished  by  the  state  registrar  with  the 
clerk  of  the  town  in  which  each  of  them  lives  within  seven  days  after  their  return 
(1011).  Penalties. — For  failure  by  the  celebrant  to  make  return,  a  fine  of  not 
more  than  $100  (1019).  For  failure  by  residents  marrying  in  another  state  to 
make  the  required  report,  a  fine  of  $20  (1011). 

The  clerk  or  keeper  of  records  of  the  meeting  in  which  a  Quaker  marriage  is 
solemnized  shall  make  return  (1012). 

b.  Local  record. — The  town  clerk  shall  keep  a  record  of  all  marriages  reported 
or  known  to  him  (1017).  He  shall  enforce,  so  far  as  possible,  the  provisions  relating 
to  return  (1019). 

c.  State  record. — The  clerk  shall  report  monthly  to  the  state  registrar  all 
marriages  which  have  occurred,  together  with  the  names,  residences  and  official 
stations  of  all  persons  who  have  neglected  to  make  the  required  returns  (1017). 
Penalties. — For  failure  by  the  town  clerk  to  report  to  the  state  registrar,  from  $20 
to  $100  (1017).  Any  person  who  hinders  the  state  registrar  from  making  any 
necessary  investigations  shall  be  fined  from  $5  to  $20  (1019). 

6.  INTER-STATE  RELATIONS 

When  residents  of  the  state,  with  "intent  to  evade"  its  laws  in  regard  to 
bigamy,  incest  and  the  marriage  of  mental  defectives,  marry  elsewhere  and  con- 
tinue to  reside  in  Maine,  the  marriage  is  void  there  (1012). 

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LAWS  BY  STATES 

7.  CERTAIN  OTHER  PROHIBITIONS 

No  insane,  feeble-minded  person,  or  idiot  is  capable  of  contracting  marriage 
(Laws,  1917,  p.  33). 

Whoever  contracts  marriage  contrary  to  the  provisions  of  the  chapter  on 
marriage  forfeits  $100  (1011). 


MARYLAND 

Authorities. — Bagley's  Civil  Code  of  1911  (references  are  to  its 
pages  unless  otherwise  specified) ;  Bagley's  General  Laws  of  1914, 
published  as  Volume  III  of  his  Code;  Laws  through  1917. 

1.  COMMON  LAW  MARRIAGES 

Common  law,  or  non-ceremonial  marriages  are  technically  not  recognized  for 
it  has  been  held  that  no  marriage  is  valid  without  some  sort  of  religious  ceremony 
(80  Maryland  89);  but  practically  such  marriages  are  recognized,  for  in  the  same 
decision  it  was  held  that  marriage  may  be  proved  by  general  reputation,  cohabi- 
tation and  acknowledgment,  and  when  these  exist  it  will  be  inferred  that  a  religious 
ceremony  has  taken  place  although  evidence  may  not  be  obtained  of  the  time,  place 
and  manner  of  the  celebration.  We  are  advised,  however,  that  in  prosecutions 
for  bigamy  and  adultery,  and  in  civil  action  for  criminal  conversation,  the  evi- 
dence of  general  reputation  and  cohabitation  is  not  sufficient. 

2.  MARRIAGEABLE  AGE 

No  statutory  provision.  Marriages  contracted  below  the  common  law  mini- 
mum ages  of  14  for  males  and  12  for  females  are  voidable  when  either  of  the 
parties  arrive  at  the  respective  ages. 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — A  license  is  not  required  if  banns  are  published  (1448). 
Penalty. — Persons  marrying  without  license  or  publication  of  banns  are  subject 
to  a  fine  of  $100,  but  this  shall  not  apply  to  Quakers  (G.  L,  p.  415). 

b.  Where  obtained. — From  the  clerk  of  the  circuit  court  of  the  county  in 
which  the  marriage  is  to  be  performed ;  in  Baltimore  from  the  clerk  of  the  court 
of  common  pleas  (1449). 

c.  Advance  notice,  objections,  etc. — No  advance  notice.  If  it  appears  to  the 
clerk  that  any  legal  impediment  to  the  marriage  exists,  he  shall  withhold  the 
license  unless  ordered  by  the  court  to  issue  it  (1450). 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  16. 
It  must  be  given  in  person  or  in  writing,  attested  by  two  witnesses  (1450). 

e.  Form  of  license. — The  license  authorizes  the  marriage  and  contains  the 
facts  ascertained  by  the  clerk  as  shown  in  3h  (G.  L.  p.  744). 

f.  Record  of  license. — Required  (1450). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — The  clerk  must  examine  on  oath  the 
person  making  application,  to  ascertain  the  full  names,  residence,  age,  and  color 
of  the  parties,  whether  married,  single  or  divorced,  and  the  degree  of  relationship, 
if  any — which  facts  shall  be  set  out  in  printed  form  to  be  signed  by  the  applicant 
(1449). 

4.  SOLEMNIZATION 
a.  The  celebrant. — No  provision  except  that  the  license  is  directed  to  any 
minister  of  the  gospel.    Penalty. — For  solemnizing  marriage  when  not  authorized 
to  do  so,  a  fine  of  $500  (G.  L.  p.  415). 

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AMERICAN  MARRIAGE  LAWS 

b.  Presentation  of  license. — For  solemnizing  a  marriage  without  license  or 
publication  of  banns,  the  celebrant  is  subject  to  a  fine  of  $100  (G.  L.  p.  415). 

c.  Form  of  ceremony. — The  license  authorizes  marriage  according  to  the  rules 
and  ceremonies  of  the  church,  society  and  religious  sect,  and  the  laws  of  the  state 
(1449). 

d.  Other  requirements  and  prohibitions. — The  celebrant  is  subject  to  the 
following  penalties:  for  knowingly  solemnizing  an  incestuous  marriage,  a  fine  of 
$500;  a  miscegenetic  marriage,  $100;  the  marriage  of  a  male  under  21  or  female 
under  16  without  parental  consent,  $1,500  (G.  L.  pp.  415-16). 

S.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  must  file  a  certificate 
within  30  days  with  the  issuer  if  a  license  has  been  issued  (1449). 

When  a  marriage  is  celebrated  after  publication  of  banns,  the  celebrant  shall 
file  a  certificate  with  the  clerk  of  the  circuit  court  of  the  county  where  the  marriage 
was  solemnized  or  with  the  clerk  of  the  court  of  common  pleas  if  the  marriage 
takes  place  in  Baltimore  (1451).  Penalty. — For  failure  to  file  the  certificate 
within  30  days,  or  within  60  days  in  case  of  marriage  after  publication  of  banns, 
the  celebrant  is  subject  to  a  fine  of  not  less  than  $10  (1451). 

In  the  case  of  a  Quaker  ceremony,  the  parties  must  sign  a  certificate  to  the 
effect  that  they  have  agreed  to  take  each  other  for  husband  and  wife,  and  this 
certificate  must  be  attested' by  at  least  12  witnesses  and  recorded  within  60  days 
either  with  the  records  of  the  society  or  in  some  court  of  record  in  the  city  or 
county  in  which  the  marriage  takes  place  (1449). 

b.  Local  record. — The  certificate  must  be  recorded  by  the  clerk  (1450).  The 
return  of  a  marriage  celebrated  after  publication  of  banns  shall  be  recorded  (1451). 
Returns  of  marriage  contracted  in  other  states  when  one  or  both  parties  are  citi- 
zens of  Maryland  are  recorded  in  a  "foreign  marriage  record  book"  (G.  L.  p.  746). 

c.  State  record. — The  clerk  shall  transmit  monthly  to  the  state  bureau  of 
vital  statistics  a  report  of  each  marriage  (G.  L.  p.  744).  Penalty. — For  failure  to 
make  this  report,  a  fine  of  $10  for  each  offense  (G.  L.  p.  745). 

6.  INTER-STATE  RELATIONS 

Residents  marrying  out  of  the  state,  without  license  or  the  publication  of 
banns,  shall  each  be  fined  $100  (G.  L.  p.  415). 

7.  CERTAIN  OTHER  PROHIBITIONS 

Marriages  between  a  white  person  and  a  negro  or  person  of  negro  descent  to 
the  third  generation  inclusive  (G.  L.  p.  416). 


MASSACHUSETTS 
Authorities. — Revised  Laws  of  1902  (references  are  to  its  pages 
unless  otherwise  specified);    Supplement  of  1908;    Laws  through 
1918;   Digest  of  1906  and  Supplement. 

I.  COMMON  LAW  MARRIAGES 

Such  marriages  are  not  recognized  (Milford  v.  Worcester,  7  Mass.  48;    and 
Norcross  v,  Norcross,  155  Mass.  425). 

2.  MARRIAGEABLE  AGE 

No  statutory  provision.    The  common  law  ages  are  recognized — 14  for  males 
and  12  for  females. 

So 


LAWS  BY  STATES 

3.  THE  MARRIAGE  LICENSE  i 

a.  Requirement. — Persons  who  intend  to  be  joined  in  marriage  in  the  state 
shall  cause  a  notice  of  intention  to  be  entered  (1347).    See  3e. 

b.  Where  obtained. — From  the  clerk  or  registrar  of  the  city  or  town  in  which 
the  parties  respectively  dwell ;  if  both  are  non-residentS  of  the  state,  in  the  city  or 
town  in  which  the  marriage  is  to  be  solemnized. 

c.  Advance  notice,  objections,  etc. — Notice  of  intention  must  be  filed  at  least 
five  days  before  the  license  is  issued,  except  in  the  case  of  immigrants  who 
have  arrived  within  five  days  (Acts,  1911,  pp.  938-39),  upon  order  of  the  court  or 
in  cases  where  death  is  imminent  upon  the  authoritative  request  of  a  clergyman 
or  physician,  license  may  issue  immediately  (Acts,  1912,  p.  394).  Penalty. — For 
issuing  a  license  before  the  expiration  of  the  five  day  period  a  forfeit  of  not  more 
than  $100  (Acts,  1911,  p.  939). 

There  is  no  provision  as  to  objections. 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18.  It 
must  be  given  in  writing.  If  there  is  no  parent  or  guardian  in  the  state  competent 
to  act  the  license  may  be  issued  without  such  consent  (p.  1349),  unless  the 
male  is  under  the  age  of  18  years  or  the  female  under  the  age  of  16,  when  such 
notice  may  be  given  as  the  court  may  order  by  the  parent  who  lives  outside  of  the 
state,  provided  such  parent  has  not  deserted  his  or  her  family  (Sup.,  p.  1297). 
The  issuer  may  require  of  the  applicant  an  affidavit  setting  forth  the  age  of  the 
parties  as  sworn  to  before  the  justice  of  the  peace  (p.  1349).  Penalty. — For  grant- 
mg  a  license  without  parental  consent  when  the  issuer  has  reasonable  cause  to 
believe  the  persons  to  be  of  age  requiring  consent,  a  forfeit  of  not  over  $100 
(Acts,  1911,  p.  939). 

If  it  is  necessary  to  give  notice  in  two  states  of  the  intention  of  marriage  of  a 
minor,  the  issuer  who  takes  the  consent  of  the  parent  shall  take  it  in  duplicate, 
retaining  one  copy  and  delivering  the  other,  attested  by  him,  to  the  applicant  to 
be  given  to  the  person  issuing  the  second  license.  Penalty. — For  violation,  a 
fine  of  not  more  than  $500,  or  imprisonment  for  not  more  than  one  year,  or  both 
(1352). 

A  marriage  license  may  not  be  issued  for  a  male  under  18  or  a  female  under 
16  without  a  court  order,  in  addition  to  parental  consent  (1348). 

e.  Form  of  license. — The  license  certifies  the  time  when  notice  of  intention  was 
entered  and  all  facts  relative  to  the  marriage  which  are  required  by  law  to  be  ascer- 
tained and  recorded,  except  those  relative  to  the  celebrant  (p.  1348;  Acts,  1914, 
p.  383). 

f.  Record  of  license. — No  provision. 

g.  Life  of  license. — If  the  license  is  not  used  it  must  be  returned  to  the  issuer 
within  six  months  (Acts,  1914,  p.  383). 

h.  Other  requirements  and  prohibitions. — ^The  issuer  shall  require  notice  of 
intention  of  marriage  to  be  given  to  him  in  writing  by  one  of  the  parties  to  the 
marriage  or  the  parent  or  legal  guardian,  and  shall  require  the  person  who  gives 
such  notice  to  make  oath  to  the  truth  of  all  statements  therein  shown  of  which 
such  person  shall  have  knowledge,  and  also  to  make  oath  that  there  are  no  legal 
impediments  to  the  marriage.  Penalty. — For  violation,  a  fine  of  not  over  $500,  or 
imprisonment  not  over  one  year,  or  both  (R.  L.  Ch.  151,  Sec.  17,  as  amended). 

The  clerk  may  refuse  to  issue  a  license  if  he  has  reasonable  cause  to  believe 
that  any  of  the  statements  contained  in  the  notice  of  intention  are  incorrect,  but 
he  may  at  his  discretion  accept  depositions  under  oath  made  before  him.  He  may 
also  dispense  with  the  statement  of  any  facts  required  by  law  to  be  given  in  the 
notice  of  intention  if  they  do  not  relate  to  or  affect  the  identification  or  age  of  the 
parties  if  he  is  satisfied  that  the  same  cannot  without  reasonable  effort  be  obtained 
(1349).  Divorced  persons  applying  for  a  marriage  license  shall  accompany  their 
application  by  a  certificate  or  certified  copy  from  the  clerk  of  the  court  by  which 

'  Called  a  "certificate"  in  the  Massachusetts  law. 

6  8l 


AMERICAN  MARRIAGE  LAWS 

the  divorce  was  granted,  showing  certain  facts  as  to  the  divorce.  If  such  a  cer- 
tificate cannot  be  obtained  by  the  appUcant  the  judge  of  probate  of  the  county 
where  the  license  is  desired  may,  in  his  discretion,  grant  a  certificate  of  the  facts 
as  stated  by  the  applicant  (Acts,  1912,  p.  491). 

The  clerk  is  forbidden  to  issue  a  license  for  the  marriage  of  non-residents  pro- 
hibited from  inter-marriage  by  the  laws  of  their  state.  He  shall  satisfy  himself 
on  this  point  by  requiring  affidavits  and  otherwise.  Penalty. — For  issuing  a  li- 
cense to  such  persons  with  the  knowledge  that  they  are  prohibited  from  such 
marriage  in  their  own  state,  a  fine  of  from  $100  to  $500,  or  imprisonment  for 
not  over  one  year,  or  both  (Acts,  1913,  p.  302). 

Whoever,  when  applying  for  a  license,  wilfully  makes  a  false  statement  rela- 
tive to  the  age,  residence,  parent,  master  or  guardian  of  either  of  the  parties 
intending  marriage  shall  forfeit  not  more  than  $200  (p.  1352). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  justice  of  the  peace  if  he  is  also  a  clerk  or  assistant  clerk 
of  a  city  or  town,  or  a  registrar  or  assistant  registrar  of  the  city  or  town  in  which 
he  holds  such  office,  or  if  he  is  also  clerk  or  assistant  clerk  of  a  court  in  a  city  or 
town  in  which  the  court  is  authorized  to  be  held,  or  if  he  has  been  designated  by 
the  governor  to  solemnize  marriage;  a  minister  of  the  gospel  ordained  according  to 
the  usages  of  his  denomination  who  resides  in  the  commonwealth  and  continues  to 
perform  the  functions  of  his  office,  or  a  rabbi  of  the  Israelitish  faith  licensed  by 
the  congregation  of  such  faith  established  in  the  commonwealth  who  has  filed 
with  the  clerk  or  registrar  of  the  city  or  town  in  which  he  resides  a  certificate  of  the 
establishment  of  the  synagogue;  the  Society  of  Friends  according  to  its  usages. 
No  person  shall  solemnize  marriage  unless  he  is  able  to  read  and  write  English 
(1350).  Penalty. — For  solemnizing  a  marriage  when  not  authorized  to  do  so,  a 
fine  of  not  over  $500,  or  imprisonment  for  not  over  one  year,  or  both  (p.  1351). 

b.  Presentation  of  license. — Required  (Laws,  1911,  p.  939).  Penalty. — For 
solemnizing  without  a  license,  a  fine  of  not  over  $500  (1352). 

c.  Form  of  ceremony. — No  provision. 

d.  Other  requirements  and  prohibitions. — The  celebrant  is  forbidden  to 
solemnize  a  marriage  if  he  has  reason  to  believe  that  either  party  is  a  minor  and 
parental  consent  has  not  been  given,  if  there  is  any  parent  or  guardian  in  the  state 
(1346).  Penalty. — For  violation,  a  fine  of  not  over  $500,  or  imprisonment  not 
over  one  year,  or  both  (1342). 

He  is  also  forbidden  to  solemnize  a  marriage  if  he  has  solemnized  a  marriage 
of  residents  of  another  state  that  would  be  prohibited  by  the  laws  of  that  state 
from  marrying.  Penalty. — For  violation,  a  fine  of  from  $100  to  $500,  or  imprison- 
ment not  over  one  year,  or  both  (Acts,  1913,  p.  302). 

For  solemnizing  a  marriage  upon  a  license  more  than  six  months  after  its 
issuance  the  celebrant  is  subject  to  a  fine  of  not  over  $10  (Acts,  1914,  p.  383). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  shall  between  the  first 
and  tenth  day  of  the  month  following  the  marriage  return  each  license  to  the 
clerk  who  issued  it,  and  send  a  copy  of  each  to  the  clerk  in  the  place  of  solemniza- 
tion, if  this  is  not  the  residence  of  the  parties.  The  license  shall  be  endorsed  to 
show  the  place  and  date  of  the  marriage.  Penalty. — For  failure  to  do  so,  a  for- 
feit of  from  $20  to  $100  (p.  1350). 

No  alteration  or  erasure  shall  be  made  by  any  person  on  this  certificate  until 
it  has  been  returned  to  the  office  of  the  clerk  and  then  only  in  such  form  and  to 
such  extent  as  he  may  prescribe.  Penalty. — For  making  an  illegal  alteration  or 
erasure  a  fine  of  not  over  $100  (p.  1352). 

Residents  of  the  state  marrying  elsewhere  but  returning  to  Massachusetts 
must  file,  within  seven  days  after  their  return,  with  the  clerk  or  registrar  of  the 

82 


LAWS  BY  STATES 

city  or  town  in  which  either  of  them  lived  at  the  time  of  their  marriage,  a  cer- 
tificate including  the  facts  relative  to  the  marriage  required  by  law  (1349). 
Penalty.— For  failure  to  do  so,  a  forfeit  of  $10  (1349). 

b.  Local  record. — The  certificates  shall  be  recorded  by  the  clerk  or  registrar 
(1350).    Penalty.— A  forfeit  of  from  $20  to  $100. 

c.  State  record. — The  clerk  shall  transmit  annually  to  the  secretary  of  the 
commonwealth  certified  copies  of  the  record  of  marriage  (p.  406).  Penalty. — For 
wilfully  making  a  false  return  a  fine  of  not  over  $50. 

6.  INTER-STATE  RELATIONS 

If  a  person  who  intends  to  remain  a  resident  of  Massachusetts,  and  is  forbidden 
by  its  laws  to  marry,  contracts  marriage  elsewhere,  such  marriage  is  null  and  void 
in  Massachusetts.  If  a  person  who  intends  to  remain  a  resident  of  some  other 
jurisdiction,  and  is  forbidden  to  marry  by  its  laws,  contracts  marriage  in  Mas- 
sachusetts, the  marriage  is  void  (Acts,  1913,  p.  302), 

7.  CERTAIN  OTHER  PROHIBITIONS 

It  is  a  criminal  offense  to  entice  away  a  girl  under  the  age  of  16  years  for  a 
clandestine  marriage  without  parental  consent  (1785). 

An  insane  person  or  an  idiot  is  not  capable  of  contracting  marriage  (1356). 


MICHIGAN 

Authorities. — Compiled  laws  of  1915  (references  are  to  its  sec- 
tions unless  otherwise  indicated) ;  Laws  through  1917. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  have  been  recognized  by  the  courts  (Hutchins  v.  Kimmell, 
31  Mich.  130;  Peet  v.  Feet,  52  Mich.  467). 

2.  MARRIAGEABLE  AGE 

Males  18;  females  16  (11362).  But  marriages  of  persons  below  these  ages  are 
allowed  under  special  circumstances.  See  3b,  footnote.  A  marriage  solemnized 
when  either  of  the  parties  was  under  the  age  of  legal  consent,  if  they  have  separated 
by  mutual  consent  during  such  non-age,  or  if  the  non-age  party  elects  to  terminate 
the  marriage  relation  before  arriving  at  the  age  of  consent,  is  deemed  void^ 
(11393).  Action  for  annulment  may  be  brought  by  a  parent  or  guardian  or  next 
friend  of  the  non-age  party  (11422). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — It  is  necessary  for  all  parties  intending  to  be  married  to 
obtain  a  license  (11376). 

b.  Where  obtained. — From  the  county  clerk  of  the  county  in  which  either 
party  resides;  if  both  are  non-resident,  from  the  county  in  which  the  marriage  is 
to  be  performed  (11376). 

In  a  special  act  "for  the  protection  of  the  reputation  and  good  name  of  certain 
persons"  it  is  provided  that  a  judge  of  probate  shall  issue  a  license,  without 
publicity,  to  any  female  making  application  under  oath  that  she  is  with  child 
which,  if  born  before  her  marriage,  will  be  illegitimate;  or  has  lived  with  a  man 

>  In  practice  legal  process  is  necessary  to  establish  the  facts  on  which  this  status  is  condi- 
tioned. 

83 


AMERICAN  MARRIAGE  LAWS 

and  has  been  considered  as  his  wife;  or  for  other  good  reason  deemed  sufficient 
by  him  (11387).i 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  females  under  18  years.  Written  consent 
must  be  given  personally  before  the  clerk  or  properly  acknowledged  and  must  be 
preserved  on  file  (11378;   Public  Acts,  1917,  p.  387). 

e.  Form  of  license. — The  license  shows  the  full  name,  age,  color,  residence, 
birthplace,  occupation,  and  if  known,  the  father's  name  and  mother's  maiden 
name,  of  each  party;  any  previous  marriage  of  either  party,  the  bride's  maiden 
name  in  case  she  is  a  widow;  the  date  of  license  and  signature  of  the  clerk  (11377). 

f.  Record  of  license.— Required  (11377). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — Besides  the  matters  shown  in  the 
marriage  license  the  applicant  must  make  affidavit  of  the  competency  of  the 
parties,  to  be  filed  with  the  issuer  (11377).  Penalties. — Any  applicant  for  a  license 
who  swears  falsely  to  a  statement  in  the  license  is  guilty  of  perjury  (11383).  Any 
issuer  who  refuses  a  license  to  persons  properly  applying  and  legally  entitled  to 
one,  or  who  violates  any  of  the  provisions  of  the  act  on  marriage  is  punishable  by  a 
fine  of  from  $25  to  $100,  and  in  default  of  payment  shall  be  imprisoned  for  30  days 
(11380). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  justice  of  the  peace  or  judge  of  probate  in  his  county;  a 
judge  of  a  municipal  court  in  his  municipality  (see  also  3b,  footnote) ;  a  minister 
of  the  gospel  ordained  or  authorized  to  solemnize  marriages  according  to  the  usages 
of  his  denomination  and  who  is  pastor  of  any  church  in  the  state  or  who  shall  con- 
tinue to  preach  the  gospel  in  the  state  (11368);  Quakers  or  other  denominations 
having  any  peculiar  mode  of  solemnizing  marriage  (1 1374).  Penalty. — For  under- 
taking to  solemnize  marriage  when  not  authorized  to  do  so,  imprisonment  for  not 
more  than  one  year,  or  a  fine  of  from  $50  to  $500,  or  both  (11372). 

b.  Presentation  of  license. — For  solemnizing  a  marriage  without  a  license  the 
celebrant  is  subject  to  a  fine  of  $100,  and  in  default  of  payment,  imprisonment 
for  90  days  (11381). 

c.  Form  of  ceremony. — The  parties  must  solemnly  declare  in  the  presence  of 
the  celebrant  and  at  least  two  attending  witnesses  that  they  take  each  other  as 
husband  and  wife  (11370).  Penalty. — If  any  celebrant  shall  join  persons  in 
marriage  contrary  to  the  provisions  of  this  chapter,  he  shall  forfeit,  for  every  such 
offense,  a  sum  not  exceeding  $500  (11371). 

Marriages  among  Friends,  etc.,  must  be  solemnized  in  the  manner  heretofore 
practiced  by  them  (11374). 

d.  Other  requirements  and  prohibitions. — The  celebrant,  before  solemnizing 
the  marriage,  must  examine  at  least  one  of  the  parties  on  oath  which  he  is  author- 
ized to  administer,  as  to  the  legality  of  the  marriage  (11369).  Penalties. — For 
solemnizing  a  marriage  with  knowledge  of  any  legal  impediment,  one  year's 

>  The  judge  is  authorized  to  perform  the  ceremony  of  marriage  upon  such  a  license  or  he  may 
issue  a  written  permit  to  another  person  to  perform  it  (11388).  He  may  also  marry  such  persons 
when  under  the  marriageable  age  on  the  written  request  of  the  parent  (11387).  The  only  record  of 
the  marriage  shall  be  the  certificate  returned  to  the  judge  of  probate  and  a  duplicate  given  to  the 
bride  (1 1388) .  The  papers  shall  be  filed  by  the  judge  of  probate  in  a  private  file  and  within  10  days 
a  duplicate  shall  be  sent  to  the  secretary  of  state.  These  papers  and  the  duplicates  shall  be  open  to 
inspection  only  upon  written  order  of  the  judge  of  a  circuit  or  supreme  court,  for  such  use  as  is 
designated  in  the  order,  and  such  an  order  shall  be  made  only  upon  the  written  request  of  the  i)er- 
sons  so  married  or  when  necessary  to  the  protection  of  property  rights  (11389).  All  knowledge 
which  shall  come  to  the  judge,  secretary  of  state  or  their  deputies,  or  the  physicians  endorsing  the 
application  or  the  witnesses  shall  be  deemed  privileged  communications.  Any  violation  of  confi- 
dence is  punishable  by  a  fine  of  from  $25  to  $100,  and  in  default,  imprisonment  for  not  over  three 
months.  Any  editor  or  proprietor  of  a  newspaper  who  gives  publicity  to  such  a  marriage  is  punish- 
able by  a  fine  of  from  $50  to  $100,  and  in  default,  imprisonment  not  over  30  days  and  in  addition  he 
is  subject  to  an  action  of  libel  (11390).  If  any  judge  neglects  to  make  proper  return  he  shall  be 
fined  not  over  $50  (11390). 

84 


LAWS  BY  STATES 

imprisonment,  or  a  fine  of  from  $50  to  $100,  or  both  (11372).  For  violating  any 
provision  of  this  act,  a  fine  of  $100  and  in  default  of  payment,  imprisonment  in  the 
county  jail  for  90  days  (11381). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  certificate  shall  be  returned  by  the 
celebrant  within  10  days  to  the  issuer  (11379).  See  also  3b,  footnote.  Penalty. — 
For  failure  by  the  celebrant  to  make  the  return  a  fine  of  not  over  $100,  or  90  days 
imprisonment,  or  both  (11382). 

b.  Local  record. — ^The  certificates  returned  to  the  issuer  shall  be  recorded  and 
filed  (11378).    Penalty. — See  last  penalty  under  4d,  also  3b,  footnote. 

c.  State  record. — ^The  clerk  shall  as  often  as  once  in  three  months  make  a 
report  to  the  secretary  of  state  of  all  licenses  and  certificates  received  by  him 
(11378).    See  also  3b,  footnote. 

6.  INTER-STATE  RELATIONS 

No  statutory  provision.  "The  general  rule  of  law  is  that  a  marriage  valid 
where  celebrated  is  valid  everywhere,  and  the  converse  of  this  is  equally  general, 
that  a  marriage  void  where  celebrated  is  void  everywhere"  (Hutchins  v.  Kimmell, 
31  Mich.  131). 

7.  CERTAIN  OTHER  PROHIBITIONS 

The  marriage  of  an  insane  person,  idiot  or  person  who  has  been  confined  in  any 
public  institution  or  asylum  as  an  epileptic,  feeble-minded,  imbecile  or  insane 
patient  and  who  has  not  filed  in  the  office  of  the  issuer  a  verified  certificate  from 
two  regularly  licensed  Michigan  physicians  stating  that  the  applicant  has  been 
completely  cured  and  that  there  is  no  probability  of  transmission  of  such  defect  to 
the  issue  of  the  marriage  (1 1367).  Such  persons  shall  not  be  capable  of  contracting 
marriage. 

The  marriage  of  a  person  who  has  been  afflicted  with  syphilis  or  gonorrhoea 
and  who  has  not  been  cured  of  the  same  (11367).  Such  persons  shall  not  be  capa- 
ble of  contracting  marriage. 

Penalties. — Marriage  by  a  person  with  syphilis  or  gonorrhoea  is  deemed  a 
felony  and  is  punishable  by  a  fine  of  from  $500  to  $1,000,  or  imprisonment  for  not 
more  than  five  years,  or  both,  and  it  is  provided  that  in  such  prosecution  the  hus- 
band or  wife  may  be  examined  as  witness  against  each  other  whether  they  consent 
or  not,  and  that  any  physician  who  has  attended  the  defendant  shall  be  compelled 
to  testify.  Any  person  of  sound  mind  who  marries  a  mentally  defective  person  as' 
prohibited  above,  with  knowledge  of  the  disability,  or  who  aids  in  procuring  any 
such  marriage  license  is  deemed  guilty  of  a  felony  and  punished  by  a  fine  of  not 
more  than  $1,000,  or  imprisoned  from  one  to  five  years,  or  both  (11367). 


MINNESOTA 
Authorities. — General  Statutes  of  1913  (references  are  to  its  sec- 
tions unless  otherwise  specified);  Supplement  of  1917;   Minnesota 
Reports. 

1.  COMMON  LAW  MARRIAGES 
Such  marriages  are  recognized  (State  v.  Worthington,  23  Minn.  528;  Le  Suer  v. 
Le  Suer,  122  Minn.  407). 

2.  MARRIAGEABLE  AGE 

Males  18;  females  15  (7089).    Marriages  under  this  age  may  be  annulled  on 
suit  by  the  non-aged  party  unless  subsequently  confirmed  (7107). 

85 


AMERICAN  MARRIAGE  LAWS 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — Before  any  person  shall  be  joined  in  marriage  a  license  shall 
be  obtained  (7094).     But  a  license  is  not  required  in  the  case  of  Friends  (7104). 

b.  Where  obtained. — From  the  clerk  of  the  district  court  of  the  county  in 
which  the  woman  resides;  or  if  she  is  a  resident  of  another  state,  of  the  county 
where  the  marriage  is  to  take  place  (7094). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18 
unless  previously  married  (7095;  7214).  It  must  be  given  personally  before  the 
issuer  or  certified  under  the  hand  of  the  parents  or  guardians,  attested  by  two 
witnesses,  one  of  whom  shall  appear  before  the  issuer  and  make  oath  that  he  saw 
the  parents  subscribe  or  heard  them  acknowledge  the  certificate  (7095).  Penalty. 
— Any  issuer  violating  this  provision  shall  forfeit  to  the  parties  aggrieved  a  sum 
not  to  exceed  $1,000. 

e.  Form  of  license. — No  provision  except  that  it  shall  be  under  the  official 
seal  of  the  clerk  (7095). 

f.  Record  of  license. — Required  (7095). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — The  issuer  shall  examine  upon  oath 
the  party  applying  for  the  license  relative  to  the  legality  of  the  marriage  (7095). 
Penalty. — For  issuing  a  license  in  any  other  manner  than  as  provided,  a  forfeit  of 
not  over  $1,000  to  the  parties  aggrieved  (7095). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  justice  of  the  peace  in  his  county;  a  judge  of  a  court  of 
record,  superintendent  of  the  department  for  the  deaf  or  dumb  or  a  state  school 
for  the  deaf  and  blind  (7091) ;  a  court  commissioner  (289) ;  the  Society  of  Friends 
(7104) ;  a  licensed  or  ordained  minister  of  the  gospel  in  regular  standing  and  com- 
munication with  a  religious  society  (7091),  after  filing  a  copy  of  his  credentials 
with  the  clerk  of  the  district  court  of  some  county,  who  shall  record  the  same 
and  give  him  a  certificate.  The  place  where  his  credentials  are  recorded  shall  be 
endorsed  upon  each  certificate  of  marriage  granted  by  any  minister  (7092). 
Penalty. — For  undertaking  to  solemnize  marriage  when  not  legally  authorized 
to  do  so,  imprisonment  for  not  more  than  one  year,  or  a  fine  of  not  over  $500,  or 
both  (7102). 

b.  Presentation  of  license. — No  specific  provision.  But  see  4d,  second  para- 
graph, for  general  penalty. 

c.  Form  of  ceremony. — ^The  parties  must  declare  in  the  presence  of  the  cele- 
brant and  at  least  two  attending  witnesses  that  they  take  each  other  as  husband 
and  wife  (7096).  Members  of  the  Society  of  Friends  may  solemnize  marriage  in 
the  form  practiced  in  their  meetings  (7104). 

d.  Other  requirements  and  prohibitions. — The  celebrant  may  examine  the 
parties  under  oath,  which  he  is  authorized  to  administer,  as  to  the  legality  of  the 
intended  marriage  and  shall  not  solemnize  a  marriage  unless  he  is  satisfied  that 
there  is  no  legal  impediment.  Penalties. — For  solemnizing  a  marriage  knowing  of 
any  legal  impediment,  imprisonment  of  not  more  than  one  year,  or  a  fine  of  not 
over  $500,  or  both  (7102).  Solemnizing  a  marriage  when  either  party  is  known  to 
the  celebrant  to  be  under  the  marriageable  age  or  to  be  an  idiot  or  insane  person 
or  a  marriage  to  which  any  legal  impediment  exists  is  further  declared  to  be  a  gross 
misdemeanor  (8970). 

The  celebrant  is  further  subject  to  a  penalty  for  solemnizing  marriage  contrary 
to  any  provision  of  the  chapter  on  marriage  by  a  forfeit  of  not  over  $500,  or 
imprisonment  for  not  over  one  year  (7101). 


86 


LAWS  BY  STATES 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  shall,  within  one  month, 
file  with  the  issuer  a  certificate  of  the  marriage  (7098),  and  within  the  same  period 
deliver  to  the  clerk  of  the  district  court  of  the  county  in  which  the  marriage  took 
place  or  of  the  county  to  which  said  county  is  attached  for  judicial  purposes,  a 
similar  certificate  (7099).  The  clerk  of  the  meeting  in  which  a  Quaker  marriage  is 
solemnized  shall  file  the  latter  certificate.  If  the  marriage  does  not  take  place  in  a 
meeting  the  certificate  shall  be  signed  by  the  parties  and  at  least  six  witnesses  and 
filed  by  the  parties  (7104).  The  celebrant  shall  also  give  a  certificate  to  each  of 
the  contracting  parties  (7097).  Penalties. — For  failure  by  the  celebrant  or  other 
responsible  person  to  make  return  within  the  required  time,  a  sum  of  not  over 
$100  (7100;  7104).  For  wilfully  making  a  false  certificate,  a  sum  of  not  over  $500, 
or  imprisonment  not  over  one  year  (7101). 

b.  Local  record. — The  certificate  shall  be  filed  and  recorded  by  the  clerk. 
Penalty. — For  failure  to  record  it,  a  sum  of  not  over  $100  (7100). 

c.  State  record. — No  provision. 

6.  INTER-STATE  RELATIONS 

No  provision. 

7.  CERTAIN  OTHER  PROHIBITIONS 

Marriage  between  persons  either  of  whom  is  epileptic,  feeble-minded,  an  imbe- 
cile or  insane  (7090). 

MISSISSIPPI 

Authorities. — Code  of  1917  (references  are  to  its  sections);  Laws 
of  1918. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  recognized.  A  license  is  essential  to  the  validity  of  a  mar- 
riage but  this  provision  is  not  to  be  construed  "so  as  to  invalidate  any  marriage 
that  is  good  at  common  law"  (2556).    See  also  Floyd  v.  Calvert,  53  Miss.  37. 

2.  MARRIAGEABLE  AGE 

No  statutory  provision,  though  it  is  provided  that  marriages  within  the  age 
of  consent  for  carnal  intercourse  may  be  annulled  (780). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — A  marriage  shall  not  be  contracted  unless  a  license  for  it 
shall  have  been  issued  (2556). 

b.  Where  obtained. — From  the  clerk  of  the  circuit  court  of  the  county  in  which 
the  female  usually  resides  (2552). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18. 
It  must  be  personally  given  before  the  issuer,  or  in  writing  proved  by  at  least  one 
credible  witness  (2552).  Penalty. — Issuing  otherwise  than  as  prescribed  is  a 
misdemeanor,  but  if  the  clerk  has  required  an  affidavit  of  the  applicant  or  other 
credible  person  that  the  contracting  parties  have  reached  the  prescribed  ages,  he 
cannot  be  prosecuted  (2552). 

e.  Form  of  license. — It  authorizes  the  marriage  (2552). 

f.  Record  of  license. — ^The  license,  affidavit  and  parental  consent  must  be 
recorded  at  issuance  (2552). 

g.  Life  of  license. — No  provision. 

87 


AMERICAN  MARRIAGE  LAWS 

h.  Other  requirements  and  prohibitions. — The  issuer  must  take  an  affidavit 
from  the  appHcant  that  there  is  no  legal  cause  to  obstruct  the  marriage.  Penalty. 
— Issuing  otherwise  than  as  prescribed  is  a  misdemeanor  (2552).  The  penalty 
does  not  apply  if  the  parties  are  non-residents  of  the  state  (Holland  v.  Beard, 
59  Miss.  161). 

4.  SOLEMNIZATION 

a.  The  celebrant. — ^A  judge  of  the  supreme  or  circuit  court,  chancellor,  justice 
of  the  peace  or  members  of  the  boards  of  supervisors  within  their  respective 
counties  (2554).  An  ordained  minister  of  the  gospel  in  good  standing  (2554);  the 
pastor  of  a  religious  society  (2555),  or  Quakers,  Mennonites  or  other  societies  which 
solemnize  marriage  by  consent  of  the  parties  taken  in  open  congregation  (Implied 
in  2553). 

b.  Presentation  of  license. — Required  (2554). 

c.  Form  of  ceremony. — Not  specified. 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — ^The  celebrant  must  transmit  a  certif- 
icate of  the  marriage  to  the  issuer  within  three  months  after  solemnization  (2553). 
Penalty. — For  failure  to  do  so,  a  forfeit  of  $50  to  the  issuer,  who  may  sue  (2553). 

In  case  of  a  marriage  by  a  religious  society,  the  keeper  of  the  records  shall 
return  a  certificate  to  the  "clerk  of  the  circuit  court  of  the  county"  (2555). 

b.  Local  record. — The  clerk  must  record  the  certificate.  He  must  examine  the 
records  once  a  month,  and  if  any  celebrant  is  found  in  default  he  shall  institute 
inquiry  and  issue  a  summons  requiring  return  of  the  certificate  (2553). 

c.  State  record. — No  provision. 

6.  INTER-STATE  RELATIONS 

Residents  of  the  state  who  attempt  to  evade  its  laws,  against  incestuous  and 
miscegenetic  marriages  by  marrying  elsewhere  are  in  the  same  position,  on  their 
return,  as  if  they  had  married  in  the  state  (758;   2551). 

7.  CERTAIN  OTHER  PROHIBITIONS 

The  marriage  of  a  white  person  with  a  person  of  one-eighth  or  more  negro  or 
Mongolian  blood  is  unlawful  and  void  (2551). 


MISSOURI 

Authorities. — Revised  Statutes  of  1909  (references  are  to  its  sec- 
tions unless  otherwise  specified) ;   Laws  through  1915. 

1.  COMMON  LAW  MARIOAGES 

Such  marriages  are  recognized  (Dyer  v.  Brannock,  66  Mo.  391,  and  State  v. 
Bittick,  103  Mo.  183). 

2.  MARRIAGEABLE  AGE 

No  provision,  but  the  consent  of  the  parties  capable  in  law  of  contracting 
marriage  is  essential  to  its  validity  (8279),  and  therefore  the  common  law  ages  of 
14  for  males  and  12  for  females  are  adopted.  A  marriage  invalid  because  of 
incapacity  of  one  party  is  rendered  valid  by  ratification  after  the  incapacity  is 
removed  (Gross  v.  Gross,  96  Mo.  App.  486). 

88 


LAWS  BY  STATES 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — Previous  to  any  marriage  a  license  shall  be  obtained 
(8283). 

b.  Where  obtained. — From  the  recorder  of  any  county  or  of  the  city  of  St. 
Louis  (8284). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18 
(8284).  It  must  be  given  either  at  the  time  of  issuance  in  person  or  by  a  cer- 
tificate in  writing,  duly  attested  (8289). 

e.  Form  of  license. — It  authorizes  the  marriage  and  shows  the  names  and 
residence  of  each  party,  whether  either  is  a  minor  and  if  so,  the  fact  of  parental 
consent  (8284)  and  name  of  the  parent  consenting  (8289). 

f.  Record  of  license. — ^The  license  must  be  recorded  at  issuance  (8285).  Pen- 
alty.— For  failure  to  record  it,  a  fine  of  from  $5  to  $100  (8286). 

g.  Life  of  license. — No  provision.    See  5a. 

h.  Other  requirements  and  prohibitions. — The  recorder  is  subject  to  a  penalty 
for  wilfully  refusing  to  issue  a  license  to  any  person  legally  entitled  thereto  (8286). 
For  issuing  a  license  contrary  to  the  provisions  of  the  chapter  on  marriage,  he  is 
subject  to  a  fine  of  not  over  $500. 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  judge  of  a  court  of  record  or  justice  of  the  peace;  any 
licensed  or  ordained  preacher  of  the  gospel  who  is  a  citizen  of  the  United  States  or 
who  is  a  resident  of  and  a  pastor  of  any  church  in  this  state  (Laws,  1911,  p.  317). 

b.  Presentation  of  license. — For  solemnizing  a  marriage  when  a  marriage 
license  has  not  been  obtained  the  celebrant  is  subject  to  a  fine  of  not  over  $500, 
and  also  to  civil  action  by  the  injured  parent  (8290). 

c.  Form  of  ceremony. — No  provision. 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  must  certify  on  the 
license  the  date  and  fact  of  marriage,  and  return  it  to  the  issuer  within  90  days 
after  issuance  (8284).  Penalty. — For  failure  to  make  return  or  for  making  a 
false  return  a  fine  of  from  $5  to  $100  (8286).  The  recorder  must  certify  to  the 
grand  jury  at  each  regular  term  of  the  court  of  criminal  jurisdiction  a  list  of  all 
marriage  licenses  issued  by  him,  which  have  not  been  returned  to  him  within  90 
days  after  issuance  (8287). 

b.  Local  record. — The  recorder,  when  the  license  is  returned  to  him,  endorsed 
as  shown  in  5a,  must  record  it  (8287).  Penalties. — For  wilfully  making  a  false 
record,  he  is  subject  to  a  fine  of  from  $5  to  $100  (8286);  for  failure  to  certify  the 
list  of  delinquents  to  the  grand  jury,  a  fine  of  from  $5  to  $25  (8287). 

c.  State  record. — No  provision. 

6.  INTER-STATE  RELATIONS 

A  person  having  a  spouse  living  cannot  evade  punishment  for  bigamy  by 
marrying  outside  of  the  state  (4722). 

7.  CERTAIN  OTHER  PROHIBITIONS 

Marriage  between  white  persons  and  negroes  or  Mongolians  (8280). 


89 


AMERICAN  MARRIAGE  LAWS 


MONTANA 
Authorities. — Revised  Code  of  1907  (references  are  to  its  sections 
unless  otherwise  specified);    Supplement  of  1915;    Laws   through 
1917. 

1.  COMMON  LAW  MARRIAGES 
Such   marriages  are  recognized.     To  constitute  marriage  consent  must  be 
followed  by  solemnization,  or  by  mutual  and  public  assumption  of  the  marital  rela- 
tion (3607).    See  also  O'Malley  v.  O'Malley,  46  Mont.  549. 

2.  MARRIA.GEABLE  AGE 

Males  18;  females  16  (3608). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — Previous  to  solemnization  a  license  must  be  obtained  (3618). 

b.  Where  obtained. — From  the  clerk  of  the  district  court  of  the  county  in 
which  the  marriage  is  to  take  place  (3618). 

Neither  party  is  obliged  to  appear,  for  the  application  may  be  made  by  an 
attorney  for  either  party  (3818).  By  implication  in  Section  3622  application  may 
be  made  by  mail. 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18. 
It  must  be  in  writing  and  proved  by  the  testimony  of  at  least  one  competent 
witness  (3619;  3584).  When  application  is  made  by  mail  the  parental  consent 
must  be  accompanied  by  an  affidavit  (3622). 

Marriages  of  males  under  18  and  females  under  16,  without  parental  consent, 
may  be  annulled  on  suit  of  the  parent  or  guardian  during  the  non-age  of  the 
minor,  or  on  suit  of  the  minor  within  two  years  after  reaching  the  marriageable 
age,  provided  the  marriage  is  not  then  recognized  (3636-37). 

e.  Form  of  license. — The  license  must  show  the  name,  residence,  place  of 
birth,  parentage,  ages  and  color  of  the  parties,  and  whether  or  not  they  have  been 
previously  married  or  divorced  (3620). 

f.  Record  of  license. — Required  (3620). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — The  clerk  may,  in  his  discretion,  re- 
quire that  the  necessary  information  (see  3e)  be  given  under  oath.  When  applica- 
tion is  made  by  mail  the  statement  of  facts  must  be  accompanied  by  an  affidavit 
as  to  the  correctness  thereof,  made  before  a  proper  official  (3622).  License  may 
be  refused  if  either  party  is  legally  incompetent  or  after  a  divorce  within  the 
period  which  must  elapse  before  re-marriage  (3621). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  justice  of  the  supreme  court;  judge  of  the  district  court; 
justice  of  the  peace;  mayor  of  any  city;  a  priest  or  minister  of  the  gospel  or  a 
religious  society  according  to  its  usages  (3617).  Marriage  may  be  solemnized  by 
declaration  (3631). 

b.  Presentation  of  license. — Required  (3623). 

c.  Form  of  ceremony. — The  parties  must  solemnly  declare  in  the  presence  of 
the  celebrant  and  at  least  two  witnesses  that  they  take  each  other  as  husband  and 
wife  (3629).  Persons  marrying  without  the  solemnization  provided  for  must 
jointly  make  a  declaration  of  marriage  showing  their  names,  ages  and  residences; 
the  fact  and  time  of  marriage;  and  that  the  marriage  has  not  been  solemnized 
(3631).     If  no  record  of  a  marriage  is  known  to  exist  the  parties  may  make  a 

90 


LAWS  BY  STATES 

similar  declaration.  These  declarations  must  be  subscribed  by  the  parties,  and 
attested  by  at  least  three  witnesses,  and  acknowledged  and  recorded  (3632-33). 
d.  Other  requirements  and  prohibitions. — The  celebrant,  for  knowingly  solem- 
nizing a  miscegenetic  marriage,  is  subject  to  a  fine  of  $500,  or  imprisonment  for 
one  month,  or  both  (Supplement  3615-a);  for  knowingly  solemnizing  an  inces- 
tuous or  other  marriage  forbidden  by  law,  a  fine  of  from  $100  to  $1,000,  or  im- 
prisonment from  one  year  to  two  years,  or  both  (8460). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  shall  certify  the  fact  of 
marriage  upon  the  license  and  within  30  days  return  the  license  and  the  certificate 
to  the  issuer  (3623).  He  must  also  file  quarterly  with  the  county  clerk  a  certified 
copy  of  his  own  marriage  registry  (1761).  Penalties. — For  failure  to  return  the 
certificate  to  the  issuer  within  30  days  the  celebrant  shall  forfeit  from  $10  to  $50 
(3625).  For  making  a  false  return  to  the  county  clerk  a  fine  of  from  $100  to  $1,000, 
or  imprisonment  from  one  to  two  years,  or  both  (8461). 

b.  Local  record. — The  clerk  of  the  district  court  shall  record  the  certificate 
(3623).  The  copy  of  the  celebrant's  registry  shall  be  recorded  in  the  registry  of 
marriages  kept  by  the  county  clerk.  The  same  marriage  must  be  recorded  by  the 
county  clerk  but  once  (1763).  Penalties. — For  failure  by  the  clerk  of  the  district 
court  to  record  the  certificate  within  one  month,  from  $10  to  $50  (3625).  For 
wilfully  making  a  false  report  of  any  return,  from  $100  to  $1,000,  or  imprisonment 
from  one  to  two  years,  or  both  (8461). 

c.  State  record. — No  provision. 

6.  INTER-STATE  RELATIONS 

Marriages  valid  where  contracted  are  valid  in  Montana  (3614),  but  this  is 
modified  by  the  law  that  if  residents  of  the  state  contract  a  miscegenetic  marriage 
elsewhere  it  be  void  (Sup.,  p.  3615-a). 

7.  CERTAIN  OTHER  PROHIBITIONS 

Miscegenetic  marriages  include  marriages  between  white  persons  and  negroes, 
Chinese  or  Japanese.    Such  marriages  are  void  (Sup.,  p.  3615-a). 


NEBRASKA 
Authorities. — Revised  Statutes  of  1913  (references  are  to  its  sec- 
tions) ;  Laws  through  extraordinary  session  of  1918. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  recognized  (Coad  v.  Coad,  87  Nebr.  290;  Bailey  v.  State, 
36  Nebr.  808). 

2.  MARRIAGEABLE  AGE 
Males  18;  females  16  (1541).    Marriages  under  the  ages  may  be  annulled  upon 
application  of  the  parents  or  guardian,  unless  ratified  after  reaching  the  pre- 
scribed age  (1596);  and  may  be  annulled  if  the  parties  separate  during  non-age 
(1557). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — Previous  to  a  solemnization  of  any  marriage  a  license  must 
be  obtained. 

b.  Where  obtained. — From  the  county  judge  of  the  county  in  which  the  mar- 
riage is  to  take  place  (1543). 

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AMERICAN  MARRIAGE  LAWS 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18 
(1627).  Consent  must  be  given  in  person  or  in  writing,  proved  by  the  testimony 
of  at  least  one  competent  witness  (1544). 

e.  Form  of  license. — It  must  show  the  names,  ages,  places  of  birth,  residence, 
color  of  the  parties  and  the  names  of  their  parents  (1545). 

f.  Record  of  license. — Required  (1545). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — If  it  appears  that  either  party  is 
legally  incompetent  or  that  there  is  any  impediment,  the  license  shall  not  be 
granted  (1546). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  judge  or  justice  of  the  peace  (1547);  a  preacher  of  the 
gospel  authorized  by  the  usages  of  his  church  to  solemnize  marriage  (1547); 
religious  societies  of  which  the  parties  are  members,  according  to  their  customs 
(1554).  Penalty. — For  undertaking  to  solemnize  marriage  when  not  legally 
authorized  to  do  so,  a  fine  of  not  over  $500,  or  imprisonment  not  exceeding  one 
year  (1552). 

b.  Presentation  of  license. — No  provision. 

c.  Form  of  ceremony. — The  parties  must  solemnly  declare  in  the  presence  of 
the  celebrant  and  at  least  two  attending  witnesses  that  they  take  each  other  as 
husband  and  wife  (1548). 

d.  Other  requirements  and  prohibitions. — A  celebrant  who  solemnizes  a  mar- 
riage, knowing  of  any  legal  impediment,  is  subject  to  a  fine  of  not  over  $500  or 
imprisonment  not  exceeding  one  year  (1552). 

5.  THE  MARRIAGE  RECORD 

a»  Certificates  and  their  distribution. — The  celebrant  must  file  a  certificate 
within  three  months  with  the  county  judge  of  the  county  in  which  the  marriage 
took  place  (1550).  Penalties. — For  failure  to  file  the  certificate  with  the  county 
judge,  or  for  wilfully  making  a  false  certificate,  a  fine  of  not  over  $500  or  im- 
prisonment not  exceeding  one  year  (1552). 

b.  Local  record. — The  certificate  must  be  recorded  by  the  judge  within  one 
month  after  he  receives  it  (1551).  Penalties. — For  failure  by  him  to  record  it,  or 
for  wilfully  making  a  false  record,  a  fine  of  not  over  $500  or  imprisonment  not 
exceeding  one  year  (1552). 

c.  State  record. — The  county  judge  shall  report  annually  to  the  secretary  of  the 
state  board  of  health.  Penalty. — For  failure  to  make  this  report  a  fine  of  $25  for 
each  instance  of  neglect  (2754). 

6.  INTER-STATE  RELATIONS 

Marriages  valid  where  contracted  are  valid  in  Nebraska  (1556),  even  though 
the  parties  left  Nebraska  to  evade  its  laws,  unless  such  marriage  is  expressly 
declared  void  (State  v.  Hand,  87  Nebr.  189;  Staley  v.  State,  89  Nebr.  701). 

7.  CERTAIN  OTHER  PROHIBITIONS 

Marriage  between  a  white  person  and  a  person  of  one-eighth  or  more  negro, 
Japanese  or  Chinese  blood  is  void  (1542).  The  marriage  of  an  idiot  or  insane  per- 
son is  declared  void  in  Sec.  1542,  but  such  a  marriage  may  be  recognized  by  the 
incapable  person  after  restoration  of  reason  (1598). 


92 


LAWS  BY  STATES 

NEVADA 

Authorities. — Revised  Laws  of  1912  (references  are  to  its  sections) ; 
Laws  through  1917. 

1.  COMMON  LAW  MARRUGES 

Such  marriages  are  recognized  (State  v.  Zichfeld,  23  Nev.  304). 

2.  MARRIAGEABLE  AGE 

Males,  18;  females,  16  (2339).  Such  marriages  may  be  confirmed  after 
arriving  at  the  prescribed  age  (2356). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — Previous  to  persons  being  joined  in  marriage  a  license  shall 
be  obtained  (2341). 

b.  Where  obtained. — From  the  county  clerk  of  the  county  in  which  one  of  the 
parties  resides;   if  both  are  non-residents,  from  any  county  clerk  (2341). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18,  not 
previously  married  (2339).  It  must  be  given  personally  before  the  clerk,  or  must 
be  in  writing  attested  by  two  witnesses,  one  of  whom  shall  appear  and  verify  the 
signature  (2341). 

e.  Form  of  license. — No  provision. 

f.  Record  of  license. — No  provision. 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — The  issuer  may  inquire  of  the 
parties  upon  oath  or  affirmation  relative  to  the  legality  of  the  marriage,  and  if 
satisfied  that  there  is  no  legal  impediment,  he  shall  grant  the  license  (2341). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  justice  of  the  supreme  court;  a  judge  of  the  district 
court  in  his  district  or  justice  of  the  peace  in  his  county;  an  ordained  minister  of 
any  religious  society  or  congregation  within  the  state,  who  after  producing  his 
clerical  credentials,  has  received  a  license  from  any  district  court  authorizing  him 
to  solemnize  marriage,  this  license  to  be  produced  to  the  county  clerk  of  every 
county  in  which  he  solemnizes  a  marriage  and  the  clerk  to  record  it  (2340) ;  the 
Society  of  Friends  (2353).  Penalty. — Any  person  not  legally  authorized  to 
solemnize  marriage,  who  undertakes  to  do  so,  shall  be  fined  not  over  $500  and 
imprisoned  until  such  fine  is  paid  (2348). 

b.  Presentation  of  license. — Required  (6479).  Penalty. — For  solemnizing 
without  requiring  it,  a  fine  of  not  over  $500,  or  imprisonment  for  not  over  six 
months,  or  both  (6480). 

c.  Form  of  ceremony. — The  parties  must  declare  in  the  presence  of  the  cele- 
brant, and  at  least  two  attending  witnesses,  that  they  take  each  other  as  husband 
and  wife  (2342).    Quakers  may  solemnize  according  to  their  forms  (2353). 

d.  Other  requirements  and  prohibitions. — For  solemnizing  a  marriage,  knowing 
of  any  legal  impediment,  the  celebrant  is  subject  to  a  fine  of  not  over  $500  and 
imprisonment  until  such  fine  is  paid  (2343).  Any  celebrant  who  knowingly 
solemnizes  a  miscegenetic  marriage  is  guilty  of  a  gross  misdemeanor  (6516). 

5.  THE  MARRIAGE  RECORD 
a.  Certificates  and  their  distribution. — The  celebrant  shall  make  a  record  of  the 
marriage,  and  within  30  days  deliver  to  the  recorder  of  deeds  of  the  county  in 
which  the  license  was  issued  a  certificate  thereof  (2344).    Penalties. — For  failure 

93 


AMERICAN  MARRIAGE  LAWS 

to  make  the  required  return,  a  fine  of  from  $20  to  $500  or  imprisonment  from 
10  to  50  days,  or  both  (2346).  For  wilfully  making  a  false  certificate,  a  forfeit 
of  not  over  $500  or  imprisonment  for  not  over  one  year,  or  both  (2347). 

b.  Local  record. — The  certificates  must  be  filed  and  recorded  (2345).  Penalty. 
— For  failure  on  the  part  of  the  recorder  to  do  this,  a  fine  of  from  $100  to  $500  or 
imprisonment  from  50  days  to  six  months,  or  both  (2346). 

c.  State  record. — No  provision. 

6.  INTER-STATE  RELATIONS 

No  provision. 

7.  CERTAIN  OTHER  PROHIBITIONS 

The  marriage  of  a  white  person  with  a  person  of  the  black,  brown,  yellow  or 
red  races  (6514). 

NEW  HAMPSHIRE 

Authorities. — Public  Statutes  of  1901  (references  are  to  its  pages 
unless  otherwise  specified) ;  Supplement  of  1913 ;  Laws  through 
1917. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages,  under  certain  circumstances,  are  recognized.  Persons  who 
cohabit  and  acknowledge  each  other  as  husband  and  wife  and  are  generally 
reputed  to  be  such  for  a  period  of  three  years  and  until  the  death  of  one  of  them, 
shall  be  deemed  to  have  been  legally  married,  provided  they  are  capable  of  con- 
tracting marriage  (590).  In  Dumbarton  v.  Franklin  (19  N.  H.  257)  it  was  held 
that  in  the  absence  of  evidence  to  the  contrary  a  jury  might  find  parties  to  be 
married  on  evidence  that  they  had  cohabited  and  acknowledged  themselves  to  be 
man  and  wife;  but  that  these  facts,  of  themselves,  do  not  constitute  marriage. 

2.  MARRIAGEABLE  AGE 

Males,  14;  females,  13  (Sup.,  p.  438). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — All  parties  proposing  to  be  joined  in  marriage  shall  give 
notice  to  the  official  who  issues  the  license  (588-89). 

b.  Where  obtained. — From  the  clerk  of  the  town  in  which  either  party  dwells. 
If  both  are  non-residents  of  the  state,  from  the  clerk  of  the  town  in  which  the 
marriage  is  to  be  celebrated,  or  if  there  is  no  clerk  in  such  place,  the  clerk  of  any 
adjoining  town  (588). 

c.  Advance  notice,  objections,  etc. — An  advance  notice  of  five  days  is  required, 
but  the  license  may  be  issued  earlier  upon  request  of  the  court  (Sup.,  p.  439). 

d.  Parental  consent. — Required  for  males  under  18  and  females  under  16. 
Parties  desiring  to  marry  below  these  ages,  and  their  parents  or  guardians,  may 
apply  in  writing  to  a  justice  of  the  superior  court  or  court  of  probate  and  the 
license  may  be  issued  only  on  his  order,  for  "special  cause."  Marriages  below 
these  ages,  unless  confirmed  thereafter,  if  contracted  without  the  consent  of  the 
court,  may  be  annulled  on  suit  by  the  incapable  party.  Penalties. — For  issuing 
a  license  to  persons  under  these  ages  in  violation  of  this  provision  the  clerk  is 
subject  to  a  fine  of  not  over  $200,  or  imprisonment  for  not  over  six  months,  or  both. 
Any  person  who  knowingly  makes  a  false  statement  as  to  age  with  intent  to 
influence  the  clerk  to  issue  a  license  for  such  a  person,  is  subject  to  a  similar 
punishment  (Sup.,  p.  439). 

e.  Form  of  license. — The  license  contains  the  facts  required  to  be  stated  in  the 
notice  of  intention,  as  shown  in  3h  below  (Sup.,  p.  439). 

94 


LAWS  BY  STATES 

f.  Record  of  license. — Required  (588). 

g.  Life  of  license. — No  provision, 

h.  Other  requirements  and  prohibitions. — ^The  applicants  must  cause  notice  of 
their  intention,  showing  their  names,  color,  occupation,  birthplace,  residence  and 
age;  their  condition,  whether  single  or  widowed,  whether  first  or  second  marriage; 
and  the  names,  residence,  color,  occupation  and  birthplace  of  their  parents,  to  be 
entered  in  the  office  of  the  clerk  (588).  A  license  must  not  be  issued  for  the 
marriage  of  an  epileptic,  feeble-minded,  insane  person  or  idiot  unless  the  woman  is 
over  45  years  of  age,  and  should  any  question  arise  as  to  whether  such  condition 
exists  each  person  shall  procure  an  affidavit  from  a  licensed  physician  other  than 
the  person  seeking  the  license,  showing  that  the  parties  do  not  suffer  from  any  of 
these  disabilities  (Laws,  1915,  p.  218).  Penalties. — Any  person  who  knowingly 
violates  any  of  the  provisions  of  the  Act  forbidding  the  issuance  of  a  license  to  such 
mentally  defective  persons,  or  any  person  who  swears  falsely  to  any  of  the  affi- 
davits mentioned  in  that  Act,  is  subject  to  a  fine  of  from  $50  to  $500,  or  imprison- 
ment for  not  over  30  days,  or  both  (Laws,  1915,  p.  218). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  justice  of  the  peace  in  his  county;  a  minister  of  the  gospel 
who  has  been  ordained  according  to  the  usages  of  his  denomination,  residing  in  this 
state  and  in  regular  standing  with  the  denomination  to  which  he  belongs;  any 
such  minister  residing  out  of  the  state  who  has  been  authorized  to  solemnize 
marriage  within  the  state  by  a  commission  issued  by  the  Governor  with  advice  of 
the  council,  or  who  has  a  pastoral  charge  wholly  or  partially  in  the  state,  if  the 
solemnization  is  within  his  parish ;  the  Society  of  Friends  according  to  their  cus- 
toms. Penalty. — For  solemnizing  marriage  when  not  legally  authorized  to  do  so, 
a  fine  of  not  over  $300,  one  half  to  the  use  of  the  complainant  (589). 

b.  Presentation  of  license. — Required.  Penalty. — For  solemnizing  a  marriage 
without  having  first  received  the  license,  the  celebrant  is  subject  to  a  forfeit  of 
$60  to  the  use  of  the  parent  or  guardian  who  may  sue  (589). 

c.  Form  of  ceremony. — No  provision. 

d.  Other  requirements  and  prohibitions. — Celebrants  are  forbidden  to  solem- 
nize the  marriage  of  a  person  under  the  age  of  consent  without  the  required  per- 
mission (Sup.,  p.  439).  Penalty. — A  fine  of  not  over  $200,  or  imprisonment  not 
over  six  months,  or  both. 

Celebrants  may  not  solemnize  the  marriage  of  mentally  defective  persons  pro- 
hibited from  marrying  (Laws,  1915,  p.  217).  Penalty. — A  fine  of  from  $50  to  $500, 
or  imprisonment  not  over  30  days,  or  both  (Laws,  1915,  p.  218). 

Any  person  making  any  false  statement  with  intent  to  induce  a  celebrant  to 
solemnize  the  marriage  of  a  person  below  the  age  of  consent  is  subject  to  a  fine  of 
not  over  $200,  or  imprisonment  not  over  six  months,  or  both  (Sup.,  p.  439). 

5.  THE  MARRLAGE  RECORD 

a.  Certificates  and  their  distribution. — A  copy  of  the  celebrant's  record  con- 
taining full  data  as  to  the  parties  shall  be  forwarded,  within  six  days,  to  the  clerk 
of  the  town  in  which  the  marriage  intention  was  recorded  (585).  Penalty. — For 
failure  to  do  so,  a  fine  of  not  over  $100  (587). 

Residents  going  out  of  the  state  to  marry  shall  file  a  certificate  of  their  marriage 
with  the  clerk  of  the  town  where  either  of  them  lived  prior  to  the  marriage  within 
seven  days  after  their  return.  Penalty. — Persons  failing  to  file  this  certificate 
are  liable  to  a  penalty  of  $10  (589). 

b.  Local  record. — The  clerk  shall  keep  a  record  of  all  marriages  (586)  and  shall 
annually  furnish  to  the  selectmen  a  transcript  of  his  records  for  publishing  with 
the  reports  of  the  town  officer  (173).  Whenever  a  certificate  is  filed  with  him  of  a 
marriage  of  any  person  not  a  resident  of  the  town  or  state  where  the  marriage  is 
solemnized  he  shall  forward,  within  10  days,  an  attested  copy  to  the  clerk  of  the 

95 


AMERICAN  MARRIAGE  LAWS 

town  in  which  either  of  the  persons  so  married  resides,  whether  in  this  state  or  in 
any  other  state  (Sup.,  p.  438).  Penalties. — For  failure  by  the  clerk  to  keep  a  re- 
cord, a  fine  of  not  over  $100  (587);  for  failure  to  forward  the  attested  copy,  not 
over  $50  (Sup.,  p.  438). 

c.  State  record. — The  clerk  shall  make  monthly  reports  of  his  records  to  the 
state  registrar  which  shall  also  show  the  names,  residence  and  official  station  of  all 
persons  who  have  neglected  to  make  the  required  return  (586).  Penalty. — Not 
over  $100  (587). 

6.  INTER-STATE  RELATIONS 


No  provision. 


7.  CERTAIN  OTHER  PROHIBITIONS 


The  marriage  of  a  man  to  a  woman  under  45  years  of  age,  either  of  whom  is 
epileptic,  an  imbecile,  feeble-minded,  an  idiot  or  insane  (Laws,  1915,  p.  217). 


NEW  JERSEY 
Authorities. — Compiled  Statutes  of  1910;    Supplement  of  1915 
(references   are   to   its   pages   unless   otherwise   specified);    Laws 
through  1918. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  recognized.  It  is  provided  that  nothing  in  the  revision  of 
1912  shall  be  deemed  to  render  any  common  law  marriage,  or  other  marriage  other- 
wise lawful,  invalid  by  reason  of  the  failure  to  take  out  a  license,  as  provided 
(p.  926).  See  also  Atlantic  City  Railway  Company  v.  Goodin,  62  N.  J.  L.  394; 
State  V.  Thompson,  76  N.  J.  L.  197;  Chamberlin  v.  Chamberlin,  68  N.  J.  Eq.  736. 

2.  MARRIAGEABLE  AGE 

Males,  18;  females,  16.^  Marriages  under  these  ages,  if  not  confirmed  after 
arriving  at  them,  may  be  annulled  on  suit  of  the  non-aged  party  (C.  S.,  p.  2022). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — Persons  intending  to  marry  should  first  obtain  a  marriage 
license  (924). 

b.  Where  obtained. — From  the  registrar  of  vital  statistics,  and  if  there  be  no 
such  officer,  from  the  clerk  of  the  city  or  town  or  the  assessor  of  the  township  in 
which  the  female  resides;  if  either  is  a  non-resident  of  the  state,  from  a  proper 
officer  of  the  municipality  in  which  the  male  party  resides;  if  both  are  non- 
residents, from  the  proper  officer  of  the  municipality  in  which  the  marriage  is  to 
take  place  (924);  in  cities  of  the  first  class,  from  the  city  clerk  (928). 

Both  parties  are  required  to  appear  before  the  issuer  of  licenses. 

c.  Advance  notice,  objections,  etc. — Application  must  be  made  48  hours  before 
the  issuance  of  the  license  (Laws,  1917,  p,  484),  and  the  ceremony  must  not  be  per- 
formed until  at  least  24  hours  after  the  license  has  been  issued  (924),  but  in  case 
of  arrest  on  certain  criminal  charges  the  marriage  may  be  performed  immediately 
after  obtaining  the  license  (928).  Penalty. — ^Violation  by  the  issuer  of  the  48 
hour  provision  is  a  misdemeanor  (Laws,  1917,  p.  484). 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18  (925). 
It  must  be  in  writing,  certified  in  the  presence  of  at  least  two  reputable  witnesses. 
If  either  parent  or  the  guardian  is  of  unsound  mind,  his  or  her  consent  is  not 

>  This  is  confirmed  by  one  correspondent  and  denied  by  another,  the  latter  holding  that  there 
is  no  provision,  and  referring  to  Sec.  8  of  Chap.  199,  Revision  of  1912. 


96 


LAWS  BY  STATES 

required  (926).  If  the  male  applicant  has  been  arrested  on  the  charge  of  sexual 
intercourse  with  a  woman  of  good  repute,  resulting  in  pregnancy,  the  license  to 
marry  such  woman  may  be  issued  without  parental  consent  (926).  The  marriage 
of  a  girl  under  16  against  the  will  of  her  parents  is  void  and  the  man  is  guilty  of  a 
high  misdemeanor  (C.  S.,  p.  1784). 

e.  Form  of  license. — The  license  names  the  contracting  parties  and  gives 
their  residences.  In  case  both  a  civil  and  religious  ceremony  is  desired  the  license 
shall  be  issued  in  duplicate  (925). 

f.  Record  of  license. — No  provision. 

g.  Life  of  license. — 30  days  (925). 

h.  Other  requirements  and  prohibitions. — ^The  contracting  parties  must  swear 
to  the  truth  of  the  facts  respecting  the  legality  of  the  proposed  marriage,  which 
testimony  shall  be  verified  by  a  witness  of  legal  age  residing  in  the  municipality  in 
which  the  license  is  issued,  and  the  license  shall  be  issued  only  if  after  said  testi- 
mony it  appears  to  the  issuer  that  no  legal  impediment  to  the  marriage  exists  (925). 
No  license  shall  be  issued  when  either  party  is  under  the  influence  of  an  intoxi- 
cating liquor  or  a  narcotic  drug,  or  who  is  an  imbecile,  epileptic  or  of  unsound 
mind,  nor  to  any  person  who  has  been  an  inmate  of  an  insane  asylum  or  institution 
for  indigent  persons  unless  it  appears  that  such  person  has  been  satisfactorily  dis- 
charged (924).  Penalties. — To  issue  a  license  without  the  affidavit  required  is  a 
misdemeanor  (Laws,  1917,  p.  484).  Any  applicant  who  knowingly  makes  false 
answers  to  the  issuer's  inquiries  shall  be  deemed  guilty  of  perjury  (926). 

4.  SOLEMNIZATION 

a.  The  celebrant. — ^A  justice  of  the  supreme  court;  the  chancellor  and  each 
vice  chancellor;  a  judge  of  a  court  of  common  pleas;  recorder,  police  justice,  or 
mayor;  a  minister  of  any  religion  or  any  religious  organization  of  which  either 
party  is  a  member  (923-24). 

b.  Presentation  of  license. — Required  (924).  Penalty. — For  solemnizing 
without  it  the  celebrant  is  subject  to  imprisonment  for  not  over  six  months,  or  a 
fine  not  exceeding  $500,  or  both  (926). 

c.  Form  of  ceremony. — The  certificate  must  show  the  names  of  at  least  two 
witnesses  (925).  Religious  societies  may  solemnize  marriage  according  to  their 
customs  (924). 

d.  Other  requirements  and  prohibitions. — ^The  celebrant  is  authorized  to 
administer  oaths  or  affirmations  and  to  require  the  parties  to  make  true  answers 
to  any  inquiries  he  may  make  of  either  of  them  in  order  to  ascertain  whether  any 
legal  impediment  exists.  Penalty. — ^Any  person  wilfully  making  false  answers  shall 
be  deemed  guilty  of  perjury  (926). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — ^The  certificate  which  shows  the  name, 
age,  parentage,  color,  birthplace,  occupation,  residence  and  condition  (whether 
widowed,  single  or  divorced)  of  each  party,  is  to  be  filled  in  by  the  celebrant  and 
returned  by  him  within  five  days  to  the  local  registrar  of  vital  statistics,  or  if  there 
is  no  such  officer,  to  the  city  clerk  or  township  assessor,  or  to  the  clerk  of  any 
county  board  of  health  (926).  Penalties. — For  failure  to  return  the  certificate 
within  the  required  time,  $50  (927);  for  making  a  false  certificate,  $100  (926). 

b.  Local  record. — No  provision  except  in  regard  to  certificates  of  marriage  for 
which  the  license  was  issued  in  another  city  or  town.  Any  officer  who  receives 
such  a  certificate  shall  send  a  duplicate  of  it,  within  24  hours,  to  the  proper 
officer  in  the  place  of  issuance.  These  duplicates  must  show  where  and  when  the 
original  certificates  were  issued  and  must  be  themselves  filed  by  the  officer  receiv- 
ing them  (929).  Penalty. — For  failure  to  forward  duplicate  certificates,  as 
required,  $50  (929). 

c.  State  record. — ^The  local  registrar  of  vital  statistics  or  other  designated 

7  97 


AMERICAN  MARRIAGE  LAWS 

officer  where  the  marriage  is  performed  shall  transmit  monthly  to  the  state 
bureau  of  vital  statistics  all  of  the  certificates  of  marriage  received  by  him  (927). 

6.  INTER-STATE  RELATIONS 

No  provision. 

7.  CERTAIN  OTHER  PROHIBITIONS 

The  marriage  of  a  person  who  knows  himself  to  be  infected  with  a  venereal 
disease  (Laws,  1917,  p.  52). 

NEW  MEXICO 

Authorities. — Code  of  1915  (references  are  to  its  sections);  Laws 
through  1917. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  apparently  recognized  but  there  has  been  no  decision  on 
the  subject. 

2.  MARRIAGEABLE  AGE 

Males,  18;  females,  15  (3431).  Marriages  under  these  ages  are  declared 
invalid  (3431)  but  may  be  confirmed  by  the  parties  after  arriving  at  the  marriage- 
able age  (3434). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — Parties  intending  marriage  should  obtain  a  license  (3435). 

b.  Where  obtained. — From  the  county  clerk  of  the  county  wherein  the  mar- 
riage is  to  take  place.  When  the  parties  reside  more  than  ten  miles  from  the  county 
seat  they  may  make  application  before  any  person  authorized  to  perform  mar- 
riage or  administer  oaths,  who  shall  certify  the  contents  of  the  application  to  the 
county  clerk  and  the  license  may  be  transmitted  (Laws,  1915,  Chap.  31). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  all  under  21  years  of  age  by  virtue  of  the 
fact  that  the  prescribed  form  of  license  provides  for  parental  consent  "where 
either  party  is  under  age"  (3442).    The  age  of  21  is  established  in  section  2554. 

e.  Form  of  license. — It  must  contain  the  names,  ages,  nativity  and  residence 
of  the  parties,  a  statement  that  no  legal  impediment  exists  and  a  form  for  parental 
consent  (3442). 

f.  Record  of  license. — Required  (3442). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — None. 

i.  Penalties  not  shown  above. — Any  county  clerk  who  shall  fail  to  comply  with 
the  provisions  relating  to  the  license  and  certificate  shall  be  fined  from  $50  to  $100, 
or  imprisoned  from  10  to  60  days,  or  both  (3443). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  civil  magistrate;  an  ordained  clergyman  (3426);  any 
religious  society  in  accordance  with  its  customs  (3428). 

b.  Presentation  of  license. — Required  (3437). 

c.  Form  of  ceremony. — No  provision.  The  certificate  provides,  however,  for 
the  signatures  of  two  witnesses  (3442). 

d.  Other  requirements  and  prohibitions. — ^The  celebrant  is  forbidden  to  cele- 
brate the  marriage  of  a  male  under  21  or  a  female  under  18  without  parental  con- 
sent (3431).  It  is  provided  "that  nothing  in  this  chapter  shall  excuse  any  person 
from  exercising  the  same  care,  in  satisfying  himself  as  to  the  legal  qualifications  of 

98 


LAWS  BY  STATES 

any  parties  desiring  him  to  perform  the  marriage  ceremony,  now  required  by  law 
in  addition  to  the  authority  conferred  by  the  license  aforesaid"  (3437). 

For  solemnizing  the  marriage  of  persons  under  the  marriageable  age  or  within 
the  prohibited  degrees  the  celebrant  is  subject  to  a  fine  of  not  less  than  $50  (3432). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  must  certify  the  mar- 
riage to  the  county  clerk  within  90  days  after  solemnization  (3438).  The  secretary 
of  a  religious  society  shall  file  a  certificate  with  the  probate  court  (3428). 

b.  Local  record. — The  county  clerk  shall  immediately  cause  the  certificate  to 
be  recorded  (3438).    Penalty.— Sefe  3i. 

c.  State  record. — No  provision. 

d.  Penalties  not  shown  above. — Any  celebrant  who  fails  to  comply  with  the 
provisions  of  the  chapter  on  marriage  relating  to  the  license  and  certificate  shall 
be  fined  from  $50  to  $100,  or  imprisoned  from  10  to  60  days,  or  both  (3443). 

Any  person  who  attempts  to  deceive  any  officer  or  person  authorized  to  perform 
the  marriage  ceremony  in  order  to  obtain  a  license  or  to  be  married  contrary  to  the 
law  is  subject  to  a  similar  penalty  (3443). 

6.  INTER-STATE  RELATIONS 

Marriages  valid  where  celebrated  are  valid  in  New  Mexico  (3429). 

7.  CERTAIN  OTHER  PROHIBITIONS 

Males  under  21  are  forbidden  to  marry  without  parental  consent  given  per- 
sonally or  in  writing  and  authenticated  before  competent  authority  (3427). 


NEW  YORK 
Authorities. — Bliss'    Code    Civil    Procedure,    1913;     Birdseye's 
Consolidated  Laws  of  1918  (references  are  to  its  pages  unless  other- 
wise indicated) ;  Laws  of  1918. 

1.  COMMON  LAW  MARRIAGES 

Common  law  marriages  are  recognized  in  New  York  (Ziegler  v.  Cassidy's 
Sons,  220  N.Y.  98). 

2.  MARRIAGEABLE  AGE 

Eighteen  years.  Marriages  under  this  age  may  be  annulled  on  action  by  the 
non-aged  party  or  a  parent  or  guardian  or  next  friend  provided  they  have  not  been 
confirmed  after  reaching  the  prescribed  age  (Bliss,  Sec.  1744). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — A  license  must  be  obtained  (1859). 

b.  Where  obtained. — From  the  clerk  of  the  town  or  city  where  the  woman 
resides  or  if  she  is  a  non-resident,  where  the  marriage  is  solemnized  (1859);  from 
a  justice  of  the  peace  under  certain  conditions  of  residence  (Laws,  1918,  p.  881). 

Both  parties  must  appear  before  the  issuer.    See  3h  below. 

c.  AdvEince  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18.  The 
consent  of  both  parents  if  living,  or  if  either  or  both  are  dead,  of  the  living  parent 
or  the  guardian  must  be  given  in  writing.  If  one  parent  has  been  missing  and  has 
not  been  seen  or  heard  of  for  a  period  of  one  year  preceding  the  application, 
although  diligent  inquiry  has  been  made  to  learn  his  whereabouts,  the  clerk  may 

99 


AMERICAN  MARRIAGE  LAWS 

issue  the  license  upon  the  sworn  statement  and  consent  of  the  other  parent.  If  the 
parents  are  divorced  the  consent  of  the  parent  having  legal  custody  is  sufficient. 
If  there  is  no  parent  or  guardian  living  the  issuer  shall  require  the  written  consent 
of  the  person  under  whose  care  the  minor  may  be.  The  parents,  guardians  or 
other  persons  must  personally  appear  before  the  clerk  and  execute  the  consent, 
if  they  are  residents  of  New  York  and  physically  able  to  do  so.  If  non-residents, 
consent  may  be  executed  and  acknowledged  without  the  state  (1862-63).  Penalty. 
— Any  issuer  who  fails  to  require  the  consent  provided  for  is  subject  to  a  fine  of 
$100  (1863). 

e.  Form  of  license. — It  shows  the  names  and  residence  of  the  parties  and 
includes  an  abstract  of  the  facts  ascertained  by  the  clerk,  as  shown  in  31i  below 
(1860). 

f.  Record  of  license. — Required  and  open  to  public  inspection  (1864).  Pen- 
alty.— See  5b  below. 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — Each  of  the  contracting  parties 
must  sign  a  verified  statement  or  affidavit  before  the  issuer  showing  the  names, 
ages,  residence,  color,  country  of  birth,  name  of  father  and  maiden  name  of 
mother,  occupation  and  number  of  marriage,  and  containing  the  following  declara- 
tion: "  I  have  not  to  my  knowledge  been  infected  with  any  venereal  disease  or  if 
I  have  been  so  infected  within  five  years  I  have  had  a  laboratory  test  within  that 
period  which  shows  that  I  am  now  free  from  infection  from  any  such  disease." 
The  clerk  shall  embody  in  the  statement  whether  either  applicant  has  been 
previously  married  and  whether  the  former  husband  or  wife  is  living  or  dead, 
whether  either  applicant  is  divorced,  and  if  so  when  and  where  the  divorce  was 
granted,  together  with  a  statement  that  no  legal  impediment  exists  as  to  the  right 
of  each  applicant  to  enter  into  the  marriage  state.  He  may  require  identification 
and  may  examine  witnesses  as  to  any  material  inquiry  (1862).  Penalties. — ^Any 
clerk  who  issues  a  license  for  the  marriage  of  a  person  not  legally  competent  to 
marry  without  first  taking  the  required  affidavits  is  liable  to  a  fine  of  $100  (1863). 
See  also  5b  below.  Any  person  who  in  any  statement  or  affidavit  wilfully  and 
falsely  swears  in  regard  to  any  matter  or  fact  as  to  the  competency  of  the  con- 
tracting parties  shall  be  deemed  guilty  of  perjury  (1864). 

4.  SOLEMNIZATION 

a.  The  celebrant. — ^A  mayor,  recorder,  city  magistrate,  police  justice  or  police 
magistrate  of  a  city;  the  city  clerk  of  a  city  of  the  first  class  of  over  1,000,000 
inhabitants,  in  his  office,  or  any  of  his  deputies  or  a  regular  clerk  designated  by 
him  for  such  purpose;  a  justice  or  judge  of  a  court  of  record  or  municipal  court; 
a  police  justice  of  a  village  or  a  justice  of  the  peace  except  in  cities  containing 
more  than  100,000  and  less  than  1,000,000  inhabitants;  a  clergyman  or  minister 
of  any- religion;  the  leader  or  any  of  the  three  assistant  leaders  of  the  Society  for 
Ethical  Culture  in  the  City  of  New  York,  having  its  principal  office  in  the  Borough 
of  Manhattan,  or  the  leader  of  the  Society  for  Ethical  Culture  in  the  Borough  of 
Brooklyn;  Quakers  and  people  of  other  denominations  having  as  such  any 
particular  mode  of  solemnizing  marriage.  The  city  clerk  of  a  city  of  the  first 
class  of  over  1,000,000  inhabitants  may  solemnize  a  marriage  upon  a  license  issued 
by  himself  (1857-59;   Laws,  1918,  p.  1989). 

b.  Presentation  of  license. — Required  (1859).  For  solemnizing  a  marriage 
without  production  of  a  license,  the  celebrant  is  subject  to  a  fine  of  from  $50  to 
$500  or  imprisonment  for  not  over  one  year  (1864). 

c.  Form  of  ceremony. — The  parties  must  declare  in  the  presence  of  the  cele- 
brant and  at  least  one  attending  witness  that  they  take  each  other  as  husband  and 
wife  (1859).  Quakers  and  other  denominations  having  any  particular  mode  of 
solemnization  may  solemnize  marriage  in  the  manner  heretofore  practiced  in 
their  societies  (1859).     Marriage  may  be  solemnized  by  a  written  contract  of 

100 


LAWS  BY  STATES 

marriage,  signed  by  both  parties  and  at  least  two  witnesses,  stating  the  place  of 
residence  of  each  of  the  parties  and  witnesses  and  the  date  and  place  of  marriage, 
and  acknowledged  by  the  parties  and  witnesses  in  the  manner  required  for  the 
acknowledgment  of  a  conveyance  of  real  estate  before  a  judge  or  court  of  record 
and  recorded  within  six  months  after  its  execution  in  the  office  of  the  clerk  of  the 
county  in  which  the  marriage  is  solemnized  (1857). 

d.  Other  requirements  and  prohibitions. — If  a  celebrant  solemnizes  a  marriage 
knowing  that  either  party  is  legally  incompetent,  he  is  liable  to  a  fine  of  from 
$50  to  $500  or  imprisonment  for  not  over  one  year  (1864).  For  knowingly  solem- 
nizing an  incestuous  marriage  he  is  subject  to  a  fine  of  from  $50  to  $100  to  which 
may  be  added  imprisonment  for  not  over  six  months  (1835).  Any  person  who 
procures  or  aids  in  the  solemnization  of  such  a  marriage  is  punishable  in  like 
manner  (1835). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — Celebrants  must  return  the  license  and 
abstract  of  facts  with  a  certificate  of  the  marriage  to  the  issuer  on  or  before  the 
tenth  day  of  the  following  month  (1861).  Penalty. — For  failure  to  make  such 
return  a  fine  of  from  $25  to  $50  (1861). 

b.  Local  record. — The  license  and  certificate  must  be  recorded  by  the  clerk 
(1865).  On  or  before  the  fifteenth  day  of  each  month  the  town  or  city  clerk 
shall  file  in  the  office  of  the  county  clerk  of  the  county  in  which  said  town  or  city 
is  situated  the  original  of  each  affidavit,  statement,  consent,  license  and  certificate. 
He  need  not  file  any  of  these  documents  until  the  return  is  made  (1865).  The 
county  clerk  shall  keep  a  copy  and  index  each  paper  (1866).  Penalty. — ^Any 
town,  city  or  county  clerk  who  shall  violate  any  of  the  provisions  of  the  article 
covering  licensing  and  record  is  subject  to  a  fine  of  not  over  $100  (1867). 

c.  State  record. — ^The  county  clerk  shall  transmit  quarterly  to  the  state 
department  of  health  all  of  the  original  papers  filed  with  him  and  also  all  original 
contracts  of  marriage  (1866). 

6.  INTER-STATE  RELATIONS 

A  marriage  valid  where  contracted  is  recognized  in  New  York  (Thorp  v.  Thorp, 
43  Am.  Rep.  189;  Van  Voorhis  v.  Brintnall,  40  Am.  Rep.  505). 

7.  CERTAIN  OTHER  PROHIBITIONS 

To  take  or  harbor  a  girl  under  18  years  of  age  for  the  purpose  of  marriage 
without  the  consent  of  her  parents  or  guardian  constitutes  abduction  (5603). 


NORTH  CAROLINA 

Authorities. — Pell's  Revisal  1908  (references  are  to  its  sections 
unless  otherwise  specified);  Gregory's  Supplement  of  1913;  Laws 
through  1917. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  not  recognized  (State  v.  Wilson,  121  N.  C.  650).  Marriage 
is  not  invalid,  however,  because  solemnized  without  a  license  (Maggett  v.  Roberts, 
112  N.  C.  71). 

2.  MARRIAGEABLE  AGE 

Males,  16;  females,  14  (2082).  Marriages  under  this  age  maybe  subsequently 
ratified  (Sims  v.  Sims,  121  N.  C.  300;  State  v.  Parker,  106  N.  C.  711).  It  is  a 
misdemeanor  to  contract  marriage  with  a  female  under  14  years  of  age  (3368). 

lOI 


AMERICAN  MARRIAGE  LAWS 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — No  one  shall  solemnize  a  marriage  without  a  license  for  it 
(2086). 

b.  Where  obtained. — From  the  register  of  deeds  of  the  county  in  which  the 
marriage  is  to  take  place  (2086). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  anyone  under  18  years  of  age.  It  must  be 
given  in  writing  (2088).  Penalties. — For  knowingly  or  without  reasonable  inquiry 
issuing  a  license  without  parental  consent  where  required,  a  forfeit  of  $200  payable 
to  the  parent  (2090).  Any  person  who  obtains  a  license  for  the  marriage  of  a 
minor  under  the  age  of  18  by  misrepresentation  shall  be  fined  not  over  $50,  or 
imprisoned  not  over  30  days,  or  both  (3371). 

e.  Form  of  license. — The  license  must  show  the  names,  residence,  age,  race  and 
parentage  of  the  parties;  whether  their  parents  are  living  or  dead  and  their 
residence;  parental  consent  if  required;  and  that  there  is  no  legal  impediment 
(Sup.,  2089;   Laws,  1917,  p.  101). 

f.  Record  of  license. — The  license  must  be  recorded  at  issuance  (2092). 
Penalty. — For  failure  to  record  it,  $200  to  any  person  who  shall  sue  (2092).  See 
also  Maggett  v.  Roberts,  108  N.  C,  174. 

g.  Life  of  license. — Sixty  days  (Laws,  1917,  p.  101). 

h.  Other  requirements  and  prohibitions. — If  it  appears  to  the  issuer  probable 
that  there  is  any  legal  impediment  he  shall  have  power  to  administer  an  oath 
to  the  applicant  touching  the  legal  capacity  of  the  parties  (2088) .  Penalties. — For 
knowingly  or  without  reasonable  inquiry  issuing  a  license  for  a  marriage  to  which 
there  is  any  lawful  impediment,  a  forfeit  of  $200  (2090).  It  is  a  misdemeanor 
knowingly  to  issue  a  license  for  a  miscegenetic  marriage  (3370). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  justice  of  the  peace;  an  ordained  minister  of  any  denomi- 
nation or  a  minister  authorized  by  his  church;  the  Society  of  Friends  (Sup.  2081). 

b.  Presentation  of  license. — Required  (2086).  Penalty. — For  solemnizing 
without  such  license  or  after  its  expiration,  the  celebrant  shall  forfeit  $200  to  any 
person  who  may  sue  for  it  (2087). 

c.  Form  of  ceremony. — There  must  be  consent  presently  to  take  each  other  as 
husband  and  wife  freely,  seriously  and  plainly  expressed  by  each  in  the  presence 
of  the  other  and  in  the  presence  of  the  celebrant,  and  subsequent  declaration  by 
the  celebrant  that  the  parties  are  man  and  wife  (2081).  The  certificate  must  be 
signed  by  one  or  more  witnesses  (Sup.,  2089).  Marriage  may  be  solemnized 
among  members  of  the  Society  of  Friends  according  to  their  custom  (2081). 

d.  Other  requirements  and  prohibitions. — It  is  a  misdemeanor  knowingly  to 
solemnize  a  miscegenetic  marriage  (3370). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  license  and  certificate  must  be 
returned  by  the  celebrant  to  the  register  of  deeds  within  60  days  after  solemniza- 
tion (Laws,  1917,  p.  101).  Penalty. — For  failure  to  make  return  within  the 
specified  time  the  celebrant  must  forfeit  $200  to  any  person  who  may  sue  therefor 
(2087). 

b.  Local  record. — The  certificate,  with  the  license,  shall  be  recorded  and  filed 
by  the  register.  Penalty. — For  failure  to  make  this  record  within  10  days,  $200 
to  any  person  who  may  sue  (2092). 

c.  State  record. — No  provision. 

6.  INTER-STATE  RELATIONS 

No  provision. 

102 


LAWS  BY  STATES 

7.  CERTAIN  OTHER  PROHIBITIONS 

By  miscegenetic  marriage  in  North  Carolina  is  meant  marriage  between  a 
white  person  and  a  negro  or  Indian  or  person  of  Indian  or  negro  descent  to  the 
third  generation  inclusive,  or  between  a  Cherokee  of  Robeson  County  and  negro 
or  person  of  negro  descent.  Such  marriages  are  void,  as  are  marriages  of  persons 
"incapable  of  contracting  from  want  of  will  or  understanding"  (Sup.,  2083). 


NORTH  DAKOTA 

Authorities. — Compiled  laws  of  1913  (references  are  to  its  sec- 
tions unless  otherwise  indicated);  Laws  through  1917. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  not  recognized.  The  words  of  the  statute,  "the  marriage 
relation  shall  be  entered  into  only  as  provided  by  law,"  are  mandatory  and 
prohibitive  (Schumacher  v.  Great  Northern  Co.,  23  N.  Dak.  231). 

2.  MARRIAGEABLE  AGE 

Males,  18;  females,  15  (4358). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — No  one  shall  solemnize  a  marriage  without  a  license  for  it 
(4361). 

b.  Where  obtained. — From  the  county  judge  of  the  county  in  which  one  of  the 
parties  resides  or  the  county  to  which  it  is  attached  for  judicial  purposes  (4361). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18.  It 
must  be  given  personally  or  in  writing  attested  by  two  witnesses,  one  of  whom 
must  appear  before  the  judge  and  make  oath  that  he  saw  the  parent  or  guardian 
sign  the  consent  (4362).    Penalty. — See  3h  below. 

The  issuer  must  require  an  affidavit  from  some  disinterested  credible  person 
showing  that  the  parties  are  over  the  ages  of  21  or  18  years,  unless  such  parental 
consent  is  obtained  (4375). 

A  marriage  when  contracted  without  parental  consent  by  a  male  under  18  or 
a  female  under  15  may  be  annulled  on  suit  of  the  parents  or  guardian  at  any  time 
before,  or  by  the  minor  within  four  years  after  the  minor  arrives  at  the  prescribed 
age,  provided  it  is  not  then  confirmed  (4368). 

e.  Form  of  license. — ^The  license  shows  the  names,  residence  and  ages  of  the 
contracting  parties  (4363). 

f.  Record  of  license. — Required  (4362;  4364).  Penalty. — For  neglecting  to 
make  this  record  the  issuer  is  subject  to  a  fine  of  from  $50  to  $500  (9727). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — The  issuer  must  inquire  of  the 
applicant  on  oath  relative  to  the  legality  of  the  marriage,  and  may  examine 
other  witnesses  upon  oath  if  he  deems  it  necessary.  He  must  also  require  each 
party  to  file  an  affidavit  setting  forth  whether  either  or  both  have  been  divorced 
and  he  must  require  that  a  certified  copy  of  any  divorce  decree  be  filed  with  him 
(Laws,  1917,  p.  215).  Each  party  to  the  marriage  must  file  with  the  issuer  an 
affidavit  of  at  least  one  duly  licensed  physician  other  than  the  person  seeking  the 
license  showing  that  the  contracting  parties  are  not  feeble-minded,  imbecile, 
epileptic,  insane  or  drunkards  or  afflicted  with  pulmonary  tuberculosis  in  its 
advanced  stages,  and  in  addition  the  affidavit  as  to  the  male  contracting  party 
shall  show  that  he  is  not  afflicted  with  any  contagious  venereal  disease.  The 
issuer  shall  require  an  affidavit  of  some  disinterested  credible  person  showing 

103 


AMERICAN  MARRIAGE  LAWS 

that  the  parties  are  not  habitual  criminals  (4375).  The  affidavits  may  be  taken 
before  any  officer  authorized  to  administer  oaths,  and  if  satisfactory  to  the  judge 
are  considered  to  be  of  the  same  force  and  effect  as  if  taken  before  him  (4362). 
Penalty. — ^Any  person  who  violates  any  of  the  provisions  of  the  law  relating  to 
mental  and  physical  condition,  or  any  person  swearing  falsely  to  any  statement  in 
the  affidavit  is  subject  to  a  fine  of  from  $50  to  $500,  or  imprisonment  not  over 
30  days,  or  both  (4378).  It  is  further  provided  that  any  one  swearing  falsely  to  the 
statements  in  such  affidavit  shall  be  deemed  guilty  of  perjury  (4375). 

The  issuer  is  forbidden  to  grant  a  license  to  any  one  under  the  influence  of  in- 
toxicating liquor  (4376);  for  a  marriage  which  would  contravene  the  decision  of 
any  divorce  decree  (Laws,  1917,  p.  215).  For  knowingly  issuing  a  license  for  a 
miscegenetic  marriage  he  is  subject  to  imprisonment  for  not  over  two  years,  or  a 
fine  of  not  over  $2,000,  or  both  (9584). 

General  penalty. — For  signing  or  issuing  a  license  except  as  prescribed  by  law 
the  issuer  is  subject  to  a  fine  of  from  $50  to  $500  (9727). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  judge  of  a  court  of  record  in  his  jurisdiction;  a  justice 
of  the  peace  within  his  j  urisdiction ;  an  ordained  minister  of  the  gosp)el  or  priest  of 
any  church;  the  Society  of  Friends  (4361).  Penalty. — For  attempting  to  solemnize 
marriage  when  not  legally  authorized  to  do  so  the  offender  is  subject  to  imprison- 
ment for  from  90  days  to  one  year,  or  a  fine  of  from  $100  to  $500,  or  both  (9729). 

b.  Presentation  of  license. — Required  (4361).  Penalty. — For  solemnizing  a 
marriage  without  requiring  its  presentation  the  celebrant  is  subject  to  a  fine  of 
from  $50  to  $500  (9727). 

c.  Form  of  ceremony. — The  certificate  must  be  signed  by  two  witnesses  in 
addition  to  having  the  signature  of  the  celebrant  (4361).  Indian  marriages  con- 
tracted according  to  the  Indian  customs  are  valid  (4365).  The  Society  of  Friends 
may  solemnize  marriage  according  to  their  customs  (4361). 

d.  Other  requirements  and  prohibitions. — Celebrants  are  forbidden  to  solem- 
nize the  marriage  of  epileptic,  imbecile,  feeble-minded  or  insane  persons,  common 
drunkards  or  habitual  criminals  or  persons  afflicted  with  pulmonary  tuberculosis 
in  its  advanced  stages  or  any  contagious  venereal  disease  unless  the  woman  is 
over  45  years  of  age  (4374),  or  persons  under  the  influence  of  an  intoxicating  liquor 
or  narcotic  drug  (4376).  Penalty. — Any  person  violating  the  provisions  of  the 
law  relating  to  the  marriage  of  mental  or  physical  defectives  is  subject  to  a  fine 
of  from  $50  to  $500,  or  imprisonment  for  not  over  30  days,  or  both  (4378). 

For  knowingly  solemnizing  a  miscegenetic  marriage  the  celebrant  is  subject  to 
imprisonment  for  not  over  two  years,  or  a  fine  of  not  over  $2,000,  or  both  (9585). 

5.  THE  MARIOAGE  RECORD 

a.  Certificates  and  their  distribution. — ^The  certificate  and  license  shall  be 
returned  to  the  issuer  by  the  celebrant  within  30  days  (4361).  Penalty. — For  non- 
compliance a  fine  of  from  $50  to  $500  (9728). 

b.  Local  record. — ^The  certificate  is  to  be  recorded  by  the  county  judge  (4364). 
Penalty. — For  failure  to  make  this  record  within  30  days  he  is  subject  to  a  fine  of 
from  $50  to  $500  (9727). 

c.  State  record. — No  provision. 

6.  INTER-STATE.  RELATIONS 

Marriages  valid  where  contracted  are  valid  in  North  Dakota  (4366). 

7.  CERTAIN  OTHER  PROHIBITIONS 

A  miscegenetic  marriage,  as  prohibited  in  North  Dakota,  is  a  marriage  between 
a  white  person  and  a  person  of  one-eighth  or  more  negro  blood.    Such  marriages 

104 


LAWS  BY  STATES 

are  void  (9582-83).    Persons  who  are  mentally  or  physically  afflicted,  as  shown 
under  3h  above,  are  forbidden  to  marry  (4373). 


OHIO 

Authorities. — General  Code  of  1910  (references  are  to  its  sections 
unless  otherwise  specified);  Supplement  of  1916;  Laws  through 
1917. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  recognized  (Umbenhower  v.  Labus,  85  Ohio,  238). 

2.  MARRIAGEABLE  AGE 

Males,  18;  females,  16  (11181).  In  a  case  of  pregnancy,  the  juvenile  court, 
with  the  consent  of  the  parent  or  guardian,  may  authorize  issuance  of  a  license 
when  either  or  both  parties  are  under  the  specified  ages  (Sup.,  11181-1).  Mar- 
riages under  these  ages  are  invalid  unless  confirmed  after  arriving  at  such  age 
(Shafter  v.  State,  20  Ohio,  l).i 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — Banns  must  be  published  or  a  license  must  be  obtained 
(11186). 

b.  Where  obtained. — From  the  probate  judge  of  the  county  where  the  female 
resides  (11186). 

Both  parties  must  appear  before  the  issuer,  if  a  license  is  obtained.  If  on 
evidence  of  a  reputable  physician  in  active  practice  and  residing  in  the  county 
of  issuance  the  judge  is  satisfied  that  either  party  is  unable  to  appear  by  reason  of 
illness  or  other  physical  disability,  then  the  license  may  be  granted  on  application 
and  oath  of  the  other  party,  but  the  person  unable  to  appear  must  file  an  affidavit 
setting  forth  the  desired  information  (11188). 

c.  Advance  notice,  objections,  etc. — No  general  provision,  but  if  there  is  pub- 
lication of  banns  in  place  of  obtaining  a  license,  as  per  3a  above,  such  publication 
must  take  place  on  two  different  days  of  public  worship,  the  first  at  least  10 
days  before  the  marriage  in  the  county  in  which  the  female  resides  (11186). 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18  not 
previously  married.  It  must  be  given  personally  before  the  issuer,  or  in  writing 
certified  by  two  witnesses,  one  of  whom  must  appear  before  the  issuer  and  verify 
the  signature  under  oath  (11190;  8023).  If  the  parent  is  absent  from  the  county 
in  which  the  license  must  issue  he  must  personally  appear  before  the  judge  of  a 
court  of  record  in  the  county  in  which  he  is  at  the  time  domiciled  and  give  consent 
in  writing,  which  consent  must  be  attested  by  two  witnesses  and  forwarded  to  the 
issuer  (11191).    Penalty.— See  3h.  ^ 

If  there  is  no  parent  or  guardian,  the  judge  of  the  juvenile  court  may  give  con- 
sent (Sup.,  11181-1). 

e.  Form  of  license. — It  must  state  the  penalty  for  failure  to  return  (11189). 

f.  Record  of  license. — Required  (1594). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — Each  person  for  whom  a  license  is 
sought  shall  personally  appear  in  the  probate  court  in  the  proper  county  and 
make  application  and  shall  state  upon  oath  the  name,  age,  residence,  place  of  birth, 
occupation,  father's  name  if  known,  and  the  mother's  maiden  nanie  of  each 
party,  and  the  number  of  times  either  party  has  been  previously  married,  giving 

>  In  this  decision,  which  was  rendered  before  the  marriageable  age  for  females  was  raused  to  16 
years,  the  age  referred  to  for  females  is  14  years. 

105 


AMERICAN  MARRIAGE  LAWS 

the  maiden  name  of  the  bride  in  case  she  is  a  widow  or  divorced;  also  the  name 
of  the  probable  celebrant;  and  if  the  judge  is  satisfied  that  there  is  no  legal  im- 
pediment he  shall  grant  the  license  (11188).  No  license  shall  be  granted  when 
either  applicant  is  an  habitual  drunkard,  epileptic,  imbecile  or  insane,  or  under 
the  influence  of  an  intoxicating  liquor  or  narcotic  drug  (11187).  Penalty. — For 
issuing  a  marriage  license  in  any  other  manner  than  as  provided,  a  forfeit  of  not 
over  $1,000  for  the  use  of  the  party  aggrieved  (11193). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  justice  of  the  peace  in  his  county;  the  mayor  of  a  city  or 
village  in  any  county  where  such  city  or  village  wholly  or  partly  lies;  the  super- 
intendent of  an  institution  for  the  deaf  and  dumb;  the  judge  of  the  municipal 
court  of  Columbus  (Sup.,  1558-51);  the  several  religious  societies  according  to 
their  rules  and  regulations ;  an  ordained  or  licensed  minister  of  any  religious  society 
or  congregation  within  the  state  who  has  produced  his  credentials  to  the  probate 
judge  of  any  county  in  which  he  officiates  and  obtained  a  license  authorizing  him 
to  solemnize  marriage  (11182).  He  must  produce  his  license  to  the  judge  of  the 
probate  court  in  each  county  in  which  he  solemnizes  marriage,  whereupon  the 
judge  shall  enter  his  name  upon  record  as  a  person  authorized  to  solemnize  mar- 
riages (1 1 184).  Penalty. — Whoever  not  being  legally  authorized  to  do  so  attempts 
to  solemnize  marriage  shall  be  fined  $500  and  imprisoned  not  more  than  six  months 
(12922). 

b.  Presentation  of  license. — Any  celebrant  who  solemnizes  a  marriage  without 
banns  or  license  shall  be  fined  not  over  $1,000  and  imprisoned  not  more  than  six 
months  (12921). 

c.  Form  of  ceremony. — No  provision. 

d.  Other  requirements  and  prohibitions. — In  case  of  marriage  without  a 
license  the  celebrant  must  satisfy  himself  that  intention  of  marriage  has  been 
published  and  that  parental  consent  has  been  obtained,  when  required,  either  by 
acknowledgment  in  the  presence  of  such  celebrant  or  by  the  certificate  of  the 
parent  or  guardian,  attested  by  one  or  more  credible  witnesses  who  must  appear 
before  the  celebrant  and  verify  the  consent  (11197). 

5.  THE  MARRIAGE  RECORD 

a.  Certijficates  and  their  distribution. — Every  marriage  certificate  shall  be 
transmitted,  within  30  days,  by  the  celebrant  to  the  probate  judge  of  the  county. 
Penalty. — For  failure  to  make  the  return  to  the  issuer  within  30  days  the  offender 
is  subject  to  a  fine  of  not  over  $50  (11189,  11195,  11196). 

b.  Local  record. — The  certificate  must  be  recorded  (11195). 

c.  State  record. — No  provision. 


No  provision. 


6.  INTER-STATE  RELATIONS 


OKLAHOMA 

Authorities. — Revised  Laws  1910,  known  as  the  Harris-Day  Code 
(references  are  to  its  sections  unless  otherwise  specified) ;  Supple- 
ment of  Session  Laws  through  1917. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  recognized  (Reaves  v.  Reaves,  15  Okla.  240). 

io6 


LAWS  BY  STATES 

2.  MARRIAGEABLE  AGE 

Males,  18;  females,  15.  The  marriage  of  persons  under  these  ages  is  forbidden 
but  may  be  authorized  by  the  courts  in  settlement  of  suits  for  bastardy  or  seduc- 
tion (3885).  When  either  party  is  incapable  of  contracting  marriage  for  want 
of  age,  the  marriage  may  be  annulled  on  action  brought  by  the  parent  or  guardian 
or  by  the  incapable  party,  unless  confirmed  after  the  incapacity  ceases  (4974). ^ 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — No  one  shall  contract  marriage  without  a  license  (3886). 

b.  Where  obtained. — From  the  judge  or  clerk  of  the  county  court  in  which  the 
marriage  is  to  take  place  (3887). 

Apparently  it  is  not  required  that  either  of  the  parties  shall  appear  before  the 
issuer.  The  application  may  be  sworn  to  by  any  person  having  knowledge  of  the 
facts,  if  competent  to  make  and  take  an  oath  (3886). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18.  It 
must  be  given  either  in  person  or  in  writing,  acknowledged  before  a  properly 
authorized  person  (3885).    Penalty. — See  3h  below. 

e.  Form  of  license. — It  shows  the  names,  ages  and  residences  of  the  parties, 
and  fixes  the  date  of  return  (3888). 

f .  Record  of  license. — Required  and  open  to  public  inspection  (3891).  Penalty. 
— For  concealing  any  record  of  a  license  the  issuer  is  subject  to  a  fine  of  from 
$100  to  $500,  or  imprisonment  for  from  30  days  to  one  year,  or  both  (3897). 

g.  Life  of  license. — No  explicit  provision,  but  the  license  must  be  returned  to 
the  issuer  within  30  days  from  the  issuance  (3888). 

h.  Other  requirements  and  prohibitions. — The  issuer,  upon  application  in 
writing  signed  and  sworn  to  before  him,  setting  forth  the  names,  ages  and  resi- 
dences of  the  parties  and  that  such  persons  or  either  of  them  are  not  disqualified 
or  incapable  of  entering  into  the  marriage  relation,  or  are  not  of  the  relationship 
prohibited  by  law,  being  satisfied  of  the  truth  and  sufficiency  of  such  application 
and  that  there  is  no  legal  impediment  to  the  marriage,  shall  issue  the  license 
(3887).  If  the  issuer  is  in  doubt  as  to  the  legal  capacity  of  the  parties  to  contract 
marriage  he  shall  require  additional  evidence  and  may  swear  and  examine  wit- 
nesses or  require  affidavits,  and  unless  satisfied  of  the  legality  he  shall  not  issue  the 
license  (3892).  Penalty. — For  knowingly  issuing  a  license  contrary  to  the  pro- 
visions of  the  act  concerning  marriage  the  issuer  is  subject  to  a  fine  of  from 
$100  to  $500,  or  imprisonment  for  from  30  days  to  one  year,  or  both  (3897). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  justice  of  the  supreme  court;  judge  of  the  district, 
superior,  or  county  court,  or  justice  of  the  peace;  a  preacher  or  minister  of  the 
gospel;  a  priest  or  other  ecclesiastical  dignitary  of  any  denomination  who  has 
been  duly  ordained  and  authorized  by  the  church  to  which  he  belongs  to  preach 
the  gospel  and  who  has  filed  a  copy  of  his  credentials  for  record  in  the  office  of  the 
judge  of  the  county  court  of  the  county  in  which  he  resides  (3889). 

b.  Presentation  of  license. — Required  (3889).  Penalty. — See  first  penalty 
under  4d. 

c.  Form  of  ceremony. — There  must  be  a  formal  ceremony  solemnized  in  the 
presence  of  at  least  two  competent,  adult  witnesses  (3889). 

•  A  correspondent  writes,  however,  that  where  there  are  marriages  contracted  by  parties 
under  the  ages  specified  and  these  marriages  are  followed  by  cohabitation,  the  courts  are  very 
loath  to  interfere  and  declare  such  marriages  void  without  some  equitable  adjustment  of  property 
rights.  "Our  courts  will  sustain  the  validity  of  these  marriages — in  every  case  where  they  can, 
providing  the  marriage  is  followed  by  cohabitation.  Many  marriages  have  been  annulled  by  action 
taken  immediately  after  the  contract  has  been  entered  into :  but  where  the  action  is  taken  by  one 
of  the  contracting  parties,  he  or  she  must  make  a  clear  case  or  the  marriage  will  be  sustained." 

107 


AMERICAN  MARRIAGE  LAWS 

d.  Other  requirements  and  prohibitions. — ^The  celebrant  shall  not  solemnize 
a  marriage  unless  he  has  good  reason  to  believe  the  contracting  parties  are  the 
identical  persons  named  in  the  license  and  that  there  is  no  legal  impediment  or 
objection  to  the  marriage  (3889).  Penalties. — For  knowingly  solemnizing  mar- 
riage contrary  to  the  provisions  of  the  chapter  on  marriage  the  celebrant  is  sub- 
ject to  a  fine  of  from  $100  to  $500,  or  imprisonment  for  from  30  days  to  one 
year,  or  both  (3897).  For  knowingly  solemnizing  marriage  between  persons  pro- 
hibited from  intermarrying  a  fine  of  not  over  $500  and  imprisonment  from  one 
to  five  years  (3896). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — ^The  celebrant  shall  certify  the  marriage 
upon  the  license  and  return  it  without  delay  to  the  issuer  (3890). 

b.  Local  record. — The  certificate  must  be  recorded  by  the  judge  or  clerk  (3891). 

c.  State  record. — No  provision. 

6.  INTER-STATE  RELATIONS 

No  provision. 

7.  CERTAIN  OTHER  PROHIBITIONS 

Marriage  between  a  white  person  and  a  person  of  African  descent  (3894). 


OREGON 

Authorities. — Lord's  Oregon  Laws  of  1910  (references  are  to  its 
sections  unless  otherwise  specified);  Laws  through  1917. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  not  recognized.  It  has  been  held  by  the  courts  that  the 
marriage  relation  cannot  be  entered  into  except  in  accordance  with  the  law  requir- 
ing that  the  consent  of  the  parties  to  become  husband  and  wife  must  be  declared 
in  the  presence  of  an  authorized  celebrant  and  two  witnesses  (Holmes  v.  Holmes, 
1  Sawyer  99). 

2.  MARRIAGEABLE  AGE 

Males,  18;  females,  15  (7016).  Marriages  under  these  ages  are  voidable  at  the 
suit  of  the  non-aged  party  (7018). 

3.  THE  MARRIAGE  LICENSE 
a.  Requirement. — Before  any  persons  can  be  joined  in  marriage  a  license 
must  be  produced  (7027). 

b.  Where  obtained. — From  the  county  clerk  of  the  county  in  which  the 
female  resides  (7027). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent.— Required  for  males  under  21  and  females  under  18 
(7028).  It  must  be  in  writing.  If  there  is  no  parent  resident  within  the  state  and 
the  female  has  resided  within  the  county  wherein  the  license  is  applied  for  for  a 
period  of  six  months,  the  license  may  be  issued  without  consent  (7028).  The 
applicant  must  file  an  affidavit  of  some  person  other  than  the  parties  seeking  the 
license  showing  the  facts  in  regard  to  age  and  residence  (7029).    Penalty. — See  3h. 

e.  Form  of  license. — It  shows  the  names  of  the  parties  (7027). 

f.  Record  of  license. — Required  (7030). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — The  applicant  must  file  a  certificate 
from  a  physician  authorized  to  practice  medicine  within  the  state,  made  under 
oath  within  the  preceding  10  days,  showing  that  the  male  party  is  free  from 

I08 


LAWS  BY  STATES 

contagious  venereal  disease  (Laws,  1915,  p.  350).  The  issuer  shall  procure  the 
addresses  of  the  male  party  and  of  the  affiant  (Laws,  1911,  p.  343).  Penalties. — 
For  issuing  a  license  contrary  to  the  provisions  of  the  chapter  on  marriage^  im- 
prisonment for  not  more  than  one  year,  or  a  fine  of  from  $100  to  $500  (7031).  Any 
physician  who  knowingly  makes  a  false  statement  in  the  certificate  required  shall 
be  punished  by  the  revocation  of  his  license  (Laws,  1915,  p.  350). 

For  knowingly  issuing  a  license  for  the  marriage  of  a  white  person  and  negro, 
Chinese,  Kanaka,  or  Indian  the  issuer  is  subject  to  imprisonment  from  three 
months  to  one  year  and  a  fine  of  from  $100  to  $1,000  (2165). 

4.  SOLEMNIZATION 

a.  The  celebrant. — Any  judicial  officer  of  the  state  anywhere  within  the  juris- 
diction (7019);  a  minister  or  priest  of  any  church  in  the  state  who  is  properly 
authorized  by  his  church  to  solemnize  marriage  and  who  has  filed  evidence  of  his 
authority  with  the  clerk  of  the  county  in  which  he  resides  or  in  which  the  marriage 
is  solemnized,  which  if  approved  by  the  clerk  shall  be  recorded;  or  a  non-resident 
minister  who  shall  have  filed  this  evidence  in  the  county  in  which  the  marriage  is 
solemnized,  no  minister  being  required  to  file  credentials  in  more  than  one  county 
(Laws,  1913,  p.  540);  any  religious  organization  (7026).  Penalty, — For  undertak- 
ing to  solemnize  marriage  when  not  authorized  to  do  so,  imprisonment  for  not 
more  than  one  year,  or  a  fine  of  from  $100  to  $500  (7032). 

b.  Presentation  of  license. — Required  (7027).    Penalty. — See  4d. 

c.  Form  of  ceremony. — The  parties  must  assent  or  declare  in  the  presence  of 
the  celebrant  and  at  least  two  witnesses  that  they  take  each  other  as  husband  and 
wife  (7020).    Religious  organizations  may  solemnize  marriage  according  to  their 

.estabhshed  form  (7026). 

d.  Other  requirements  and  prohibitions. — Any  celebrant  who  solemnizes  a 
marriage  contrary  to  the  provisions  of  the  marriage  law  is  subject  to  imprison- 
ment for  not  more  than  one  year,  or  a  fine  of  from  $100  to  $500  (7032).  For 
knowingly  solemnizing  the  marriage  of  a  white  person  with  a  negro,  Chinese, 
Kanaka,  or  Indian  he  is  subject  to  imprisonment  from  three  months  to  one  year 
and  a  fine  of  from  $100  to  $1,000  (2165). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  shall  within  one  month 
file  a  certificate  with  the  issuer  of  the  license  and  also  one  with  the  county  clerk 
of  the  county  where  the  marriage  took  place  (7022).  If  the  marriage  is  solemnized 
by  a  minister  this  certificate  must  show,  among  other  matters  specified,  the 
county  clerk  with  whom  his  credentials  are  recorded  (Laws,  1913,  p.  540).  In 
case  the  certificate  is  not  returned  within  the  specified  time,  the  clerk  shall  notify 
the  parties  interested  (Laws,  1911,  p.  343).  Penalty. — For  failure  to  return  the 
certificate  to  the  issuer  within  the  specified  time  the  celebrant  is  subject  to  a  for- 
feit of  from  $10  to  $50  for  every  five  days  of  neglect  (Laws,  1911,  p.  343). 

b.  Local  record. — The  certificate  must  be  filed  and  recorded  by  the  county 
clerk  (7023). 

c.  State  record. — The  county  clerk  shall  report  monthly  to  the  secretary  of  the 
county  board  of  health  who  shall  keep  a  complete  record  of  all  marriages  (4698- 
99).i  The  state  board  of  health  has  charge  of  vital  statistics  (4687).  Penalty. — 
Any  person  who  violates  any  of  the  provisions  of  the  Act  relating  to  the  state 
board  of  health  shall  be  fined  from  $10  to  $100  (4700). 

6.  INTER-STATE  RELATIONS 

No  statutory  provision.  It  has  been  held  that  marriage  contrary  to  the  laws 
of  nature  as  generally  recognized  in  Christian  countries,  such  as  involve  polygamy 

>  The  state  board  of  health,  as  a  matter  of  fact,  receives  these  reports  monthly. 

109 


AMERICAN  MARRIAGE  LAWS 

and  incest,  and  marriages  which  the  local  law  making  power  has  declared  void  are 
exceptions  to  the  rule  that  marriage  valid  where  solemnized  is  valid  everywhere 
(Sturgis  V.  Sturgis,  51  Oreg.  p.  10). 

7.  CERTAIN  OTHER  PROHIBITIONS 

The  marriage  of  a  white  person  with  a  negro  or  Mongolian  of  one-quarter  blood 
is  forbidden  and  void  (7017). 

It  is  a  criminal  offense  to  take  a  girl  under  16  years  of  age,  against  the  will  of  her 
parents  or  guardian,  for  the  purpose  of  marriage  (2085). 


PENNSYLVANIA 

Authorities. — Purdon's  Digest,  1903;  Supplement  of  1915;  Laws 
through  1917.    References  are  to  pages  of  the  volumes  named. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  recognized  (Commonwealth  v.  Stump,  53  Pa.  132;  Richard 
V.  Brehm,  73  Pa.  140). 

2.  MARRIAGEABLE  AGE 

No  statutory  provision.  The  common  law  age  for  females,  12  years,  applies 
(Ward's  Estate,  30  Pittsburgh  L.  J.,  394),  and  presumably  also  the  common  law 
age  for  males,  14  years. 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — No  person  within  the  state  shall  be  joined  in  marriage  unless 
a  license  shall  have  been  obtained  for  that  purpose  (Sup.  6586). 

b.  Where  obtained. — From  the  clerk  of  the  orphans'  court  in  the  county  where 
the  marriage  is  to  take  place  (Sup.  6586)  or  where  either  party  resides  (Dig.  2442). 
Or  the  parties  may  appear  before  a  magistrate,  alderman  or  justice  of  the  town  or 
county  "where  either  party  resides  and  in  the  county  where  the  license  is  desired  " 
and  make  oath  to  the  required  facts,  and  upon  receipt  of  their  statement  subscribed 
and  sworn  to,  the  clerk  may  grant  the  license  (Sup.  6586-7), 

By  implication  both  parties  must  appear  before  the  clerk  or  the  official  to 
whom  application  is  made  (Sup.  6585).    For  fuller  reference  see  3h  below. 

c.  Advance  notice,  objections,  etc. — No  advance  notice  is  required.  Provision 
is  made  for  the  hearing  of  objections  without  delay  or  expense  to  the  applicants 
(Sup.  6587). 

d.  Parental  consent. — Required  for  any  one  under  21  years  (Sup.  6585).  It 
must  be  given  personally  before  the  clerk  or  certified  under  the  hand  of  the  parent, 
attested  by  two  adult  witnesses,  and  properly  acknowledged.  When  there  is  no 
parent  or  guardian  and  the  judge  of  the  orphans'  court  is  absent  or  not  accessible, 
the  clerk  may  appoint  a  guardian  "pro  hac  vice"  (Sup.  6586). 

e.  Form  of  license. — The  license  authorizes  the  marriage  of  the  persons  named. 
There  is  a  special  form  of  license  for  persons  intending  to  solemnize  their  own 
marriage  (Sup.  6586). 

f.  Record  of  license. — Required  and  open  to  public  inspection  (Dig.  2442; 
Sup.  6587).  Penalty. — For  violation,  a  fine  of  not  over  $50;  for  preventing  any 
person  from  making  a  copy  of  the  entries  for  the  purpose  of  newspaper  publication, 
a  similar  penalty  (Dig.  2442). 

g.  Life  of  license. — Sixty  days  (Sup.  6587). 

h.  Other  requirements  and  prohibitions. — One  or  both  of  the  parties  shall  be 
identified  to  the  satisfaction  of  the  issuer  (Dig.  2441),  who  shall  inquire  of  them 
either  separately  or  together,  on  oath  or  affirmation,  relative  to  the  legality  of  the 

no 


LAWS  BY  STATES 

contemplated  marriage,  the  age  of  the  parties,  parental  consent  in  case  of  minors, 
any  prior  marriage  and  its  dissolution,  and  if  there  be  no  legal  objection  he  shall 
grant  the  marriage  license  (Sup.  6585). 

No  license  to  marry  shall  be  issued  except  upon  written  and  verified  application, 
which  shall  show  the  names,  color,  occupation,  birthplace,  residence,  ages  of  the 
parties;  the  number  of  the  marriage  and  that  neither  of  the  contracting  parties  is 
afflicted  with  a  transmissible  disease,  together  with  the  names,  residence,  color, 
occupation  and  birthplace  of  their  parents,  including  the  maiden  name  of  the 
mother  and  such  other  facts  as  may  be  necessary  to  determine  whether  aiiy  legal 
impediment  to  the  proposed  marriage  exists  (Sup.  6587). 

No  license  to  marry  shall  be  issued  where  either  of  the  contracting  parties  is  an 
imbecile,  epileptic,  or  person  of  unsound  mind  or  under  guardianship  as  a  person 
of  unsound  mind;  nor  to  any  male  person  who  has  been  an  inmate,  within  five 
years,  of  any  county  asylum  or  home  for  indigent  persons  unless  it  satisfactorily 
appears  that  the  cause  of  such  condition  has  been  removed  and  that  such  male 
applicant  is  physically  able  to  support  a  family;  or  if  at  the  time  of  making  applica- 
tion either  of  the  contracting  parties  is  under  the  influence  of  an  intoxicating 
liquor  or  narcotic  drug  (Sup.  6587).  Penalty. — For  issuing  or  signing  a  marriage 
license  in  any  other  manner  than  as  provided,  a  fine  of  not  over  $1,000  payable 
to  and  for  the  use  of  the  party  aggrieved  (Dig.  2443). 

i.  Penalties  not  shown  above. — If  any  alderman,  magistrate  or  justice  shall 
wilfully  make  false  return  to  the  clerk,  he  must  pay  not  over  $1,000  to  the  use 
of  the  party  aggrieved  (Dig.  2445). 

4.  SOLEMNIZATION 

a.  The  celebrant. — No  provision.  But  all  celebrants  and  clerks  of  religious 
societies  must  report  their  names  and  residence  to  the  secretary  of  the  board  of 
health,  who  shall  register  them.  If  the  celebrant  moves  to  another  place,  he 
must  report  that  fact  within  30  days  (Dig.  4095). 

b.  Presentation  of  license. — Any  one  who  solemnizes  a  marriage  or  acts  as 
attesting  witness,  unless  a  license  has  been  obtained,  shall  forfeit  $100  (Dig.  2443). 

c.  Form  of  ceremony. — No  provision. 

d.  Other  requirements  and  prohibitions. — For  solemnizing  a  marriage  when 
either  party  is  intoxicated,  the  celebrant  is  liable  to  a  fine  of  $50  and  imprisonment 
at  the  discretion  of  the  court  for  not  over  60  days  (Dig.  2445). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — A  certificate  is  to  be  returned  by  the 
celebrant  to  the  issuer  within  30  days  (Dig.  2443).  Penalty. — For  failure  to  make 
the  required  return  within  the  specified  time,  $50  (Dig.  2443).  The  return  must  be 
made  by  the  parties  in  the  case  of  a  marriage  solemnized  without  a  celebrant 
(Sup.  6587). 

All  celebrants  or  clerks  of  religious  societies  must  also  make  a  report  every 
three  months  to  the  secretary  of  the  local  board  of  health  (in  Philadelphia,  the 
health  officer)  of  all  marriages  solemnized  by  them  (Dig.  4096). 

b.  Local  record. — Return  is  to  be  recorded  by  the  issuer  of  the  license  (Sup. 
6587).    Penalty.— For  failure  to  record,  $50  (Dig.  2443). 

c.  State  record. — It  is  the  duty  of  the  state  registrar  to  collect  and  preserve  all 
records  of  marriages  (Sup.  7305),  local  registrars  being  appointed  by  him  for  the 
purpose  (Sup.  7300). ^ 

6.  INTER-STATE  RELATIONS 

No  provision. 

1  There  is  no  requirement  that  marriages  be  reported  to  the  state  registrar  or  to  his  local  represen- 
tatives. We  are  informed,  however,  that  in  practice  the  latter  copy  the  records  of  the  clerk  of  the 
orphans'  court. 

Ill 


AMERICAN  MARRIAGE  LAWS 


RHODE  ISLAND 

Authorities. — Revision  of  General  Laws  of  1909  (references  are 
to  its  pages  unless  otherwise  specified) ;  Laws  through  1917-18. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  recognized  (Chace  Petitioner,  26  R.  I.  353-54;  Williams  v. 
Herrick,  21  R.  1.401). 

2.  MARRIAGEABLE  AGE 

No  statutory  provision.  The  common  law  ages  apply — 14  for  males  and  12  for 
females  (Capwell  v.  Capwell,  21  R.  I.  101). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — Persons  intending  to  be  joined  together  in  marriage  must 
first  obtain  a  license  (Laws,  1909-10,  p.  164), 

b.  Where  obtained. — From  the  clerk  of  the  town  or  city  in  which  the  persons 
reside,  or,  if  residents  of  different  towns,  from  the  towns  in  which  they  respectively 
reside;  if  not  residents  of  the  state,  from  the  town  in  which  the  marriage  is  to  be 
solemnized  (Laws,  1909-10,  p.  165);  in  the  city  of  Providence  from  the  registrar 
of  births,  marriages  and  deaths  (849)  .^ 

Each  party  must  appear  before  the  above  mentioned  clerk  or  assistant  clerk 
(Laws,  1909-10,  p.  165).     See  also  3h  below. 

c.  Advance  notice,  objections,  etc. — If  a  woman  is  not  a  resident  of  the  state 
she  must  obtain  the  license  at  least  five  days  previous  to  the  marriage.  There  is 
no  such  requirement  in  case  she  is  a  resident  (Laws,  1909-10,  p.  165).  This  does 
not  apply  to  immigrants  just  arriving  (Laws,  1917-18,  p.  161). 

d.  Parental  consent. — Required  for  a  minor — i.  e.,  under  21  years  of  age — or 
any  person  under  the  control  of  a  guardian.  It  must  be  given  in  the  presence  of 
the  clerk  in  writing  (Laws,  1909-10,  p.  168). 

The  license  may  be  issued  to  any  person  over  18  years  of  age  who  is  residing 
in  the  state  and  who  has  no  parent  or  guardian  in  the  state  competent  to  act, 
or  to  any  person  over  18  years  of  age  who  is  not  a  resident  of  this  state  and 
who  has  no  parent  or  guardian  in  the  United  States  competent  to  act;  and  the 
town  clerk  shall  have  power  in  such  cases  to  administer  the  oath  relative  to  these 
facts:  "provided  further  that  such  information  (i.  e.,  that  shown  in  the  applica- 
tion for  license)  may  be  given  and  subscribed  by  any  minor  residing  in  this  state 
upon  the  consent  in  writing  of  the  overseer  of  the  poor  of  the  town  or  city  in 
which  such  minor  resides,  or  in  the  presence  of  the  town  clerk  or  city  clerk  or  any 
clerk  employed  in  the  office  of  the  town  or  city  clerk"  (Laws,  1909-10,  p.  168). 

e.  Form  of  license. — The  license  shows  the  names,  residence,  age,  place  of 
birth  and  color;  parents'  names,  occupation  and  birthplace;  number  of  marriage, 
whether  previously  divorced  and  occupation  of  the  groom.  It  also  shows  the 
name  of  the  place  in  which  the  marriage  is  to  be  solemnized,  i.  e.,  the  name  of  the 
state  if  the  parties  are  resident,  or  the  name  of  the  town  and  state  if  non-resident 
(Laws,  1909-10,  p.  165). 

f.  Record  of  license. — Required  (849). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — Before  a  license  is  issued  to  a  person 
who  has  been  previously  married,  such  person  must  present  to  the  clerk  an 
authenticated  copy  of  the  decree  granting  divorce  from  or  a  certificate  of  the 
death  of  the  person  to  whom  he  or  she  was  formerly  married  or  such  other  proof 
of  these  facts  as  may  be  satisfactory  to  the  clerk  (Laws,  1909-10,  p.  165). 

»  Thus  two  licenses  must  be  obtained  when  the  parties  live  in  different  towns  of  the  state. 

112 


LAWS  BY  STATES 

Whoever  shall  give  or  procure  to  be  given  any  false  information  as  to  the 
requirements  shown  in  3d  above,  or  whoever  shall  be  married  without  duly 
proceeding  as  required  by  the  chapter  on  marriage  shall  be  fined  not  over  $50 
(850).  The  information  contained  in  the  license,  as  per  3e  above,  shall  be  sub- 
scribed to  in  the  presence  of  the  clerk  or  assistant  clerk  of  the  town  in  which  the 
parties  respectively  reside  (Laws,  1909-10,  p.  165). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  justice  of  the  supreme  or  superior  court;  a  warden  of  the 
town  of  New  Shoreham  (846);  the  Society  of  Friends;  Jewish  denominations 
(847);  a  minister  of  the  gospel  who  has  obtained  a  clergyman's  license  from  the 
clerk  of  the  city  in  which  he  resides  or,  if  he  is  not  a  resident  of  the  state,  under 
certain  conditions  from  the  secretary  of  the  state  board  of  health  (Laws,  1909-10, 
p.  163).  The  clerks  of  meetings  of  the  Society  of  Friends  must  cause  their  names  and 
residence  to  be  recorded  in  the  office  of  the  county  clerk  where  they  reside  (433). 

b.  Presentation  of  license. — Required  of  each  party  (848).  Penalty. — For 
solemnizing  a  marriage  without  a  marriage  license,  a  fine  of  not  over  $1,000,  or 
six  months  imprisonment  (850). 

c.  Form  of  ceremony. — No  provision  except  that  two  witnesses  are  required  to 
be  present  besides  the  parties  and  celebrant  (849).  The  Society  of  Friends  and 
persons  of  Jewish  religion  may  solemnize  marriage  according  to  their  customs  and 
ceremonies  (847). 

d.  Other  requirements  and  prohibitions. — If  any  person  has  any  lawful  objec- 
tion he  may  state  it  in  writing  under  his  hand  to  the  celebrant,  whereupon  such 
celebrant  shall  proceed  no  further  until  such  lawful  objection  be  removed  (850). 
Penalty. — For  solemnizing  a  marriage  which  has  been  lawfully  objected  to  and  to 
which  the  impediment  has  not  been  removed,  the  celebrant  is  subject  to  a  fine 
of  not  over  $1,000,  or  imprisonment  for  six  months  (850). 

For  knowingly  solemnizing  a  bigamous  marriage,  he  is  subject  to  imprison- 
ment not  more  than  six  months,  or  a  fine  of  not  over  $1,000  (850). 

e.  Penalties  not  shown  above. — For  failure  by  the  celebrant  to  perform  any 
of  the  duties  required  of  him  by  the  chapter  on  marriage,  he  is  subject  to  a  fine 
of  not  over  $100  (850). 

Persons  marrying  without  proceeding  as  directed  in  the  statutes  shall  be  fined 
not  over  $50. 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  must  endorse  on  the 
license  the  fact  of  marriage  and  return  it  on  or  before  the  second  Monday  of  the 
month  succeeding  the  date  of  marriage  to  the  clerk  of  the  town  or  city  in  which 
the  marriage  was  solemnized  (848-49) ;  in  Providence,  to  the  registrar  of  births, 
marriages  and  deaths  (849).    Penalty. — See  4e  above. 

b.  Local  record. — The  clerk  to  whom  the  endorsed  license  is  sent  shall  care- 
fully file  and  preserve  it  (849).  Each  month  he  shall  make  a  certified  copy  of  the 
record  of  every  marriage  either  party  to  which  was  resident  in  any  other  town  in 
the  state  or  in  any  other  state,  and  transmit  it  to  the  clerk  or  registrar  of  such 
town.    The  clerk  or  registrar  receiving  such  copy  shall  record  it  (434). 

c.  State  record. — ^The  town  clerks  of  the  several  towns  or  other  designated 
person  shall  obtain  and  record  all  information  concerning  marriages  occurring 
among  the  inhabitants  of  their  respective  towns,  and  make  annual  reports  to  the 
secretary  of  the  state  board  of  health,  accompanying  them  with  a  list  of  the  persons 
required  by  law  to  make  returns  to  them  who  have  neglected  to  do  so  (430).  The 
town  clerks  shall  report  to  the  state  board  all  clergymen's  licenses  and  transfers 
(Laws,  1909-10,  p.  164). 

d.  Penalties  not  shown  above. — Any  person  who  wilfully  sends  to  the  pub- 
lisher of  a  newspaper  for  publication  a  fraudulent  notice  of  marriage  shall  be 
fined  not  over  $100  (1280). 

8  113 


AMERICAN  MARRIAGE  LAWS 

6.  INTER-STATE  RELATIONS 

No  provision. 

7.  CERTAIN  OTHER  PROHIBITIONS 

The  marriage  of  an  idiot  or  lunatic  is  void  (846). 


SOUTH  CAROLINA 

Authorities. — Code  of  1912  (references  are  to  the  sections  of  Vol. 
I);  Laws  through  1918. 

I.  COMMON  LAW  MARRIAGES 

Such  marriages  are  recognized  (Freyer  v.  Freyer,  Richardson's  Equity  Cases, 
92  ff.). 

2.  MARRIAGEABLE  AGE 

No  provision  (3745).  But  no  license  shall  be  issued  to  persons  under  the  ages 
of  18  for  males  and  14  for  females,  and  since  a  license  is  essential  to  the  validity 
of  a  marriage,  these  are  indirectly  the  marriageable  ages. 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — It  is  unlawful  to  contract  marriage  without  a  license  (3744); 
but  "nothing  herein  contained  shall  render  any  marriage  illegal  without  a  license" 
(3749). 

b.  Where  obtained. — From  a  judge  of  probate;  in  certain  counties  from  the 
clerk  of  the  court  (3745). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  anyone  under  18  years.  It  must  be  given 
in  writing  (3745). 

e.  Form  of  license. — It  shows  the  age,  residence,  race  and  nationality  of  the 
parties  (3746). 

f.  Record  of  license. — No  provision.  But  licenses  that  are  used  are  to  be 
returned  and  recorded  (3747). 

g.  Life  of  license. — No  provision. 

H.  Other  requirements  and  prohibitions. — There  must  be  a  statement  under 
oath  to  the  effect  that  the  contracting  parties  are  legally  capable  to  marry,  and 
showing  their  full  names,  ages  and  residence  (3745).  The  license  must  not  be 
issued  for  the  marriage  of  a  person  under  the  marriageable  age  (3745). 

4.  SOLEMNIZATION 

a.  The  celebrant. — An  officer  authorized  to  administer  oaths;  a  minister  of 
the  gospel;   a  Jewish  rabbi  (3751). 

b.  Presentation  of  license. — Required  (3744).  Penalty. — For  solemnizing  a 
marriage  without  the  production  of  a  license  the  celebrant  is  subject  to  a  fine  of 
from  $25  to  $100,  or  imprisonment  from  10  to  30  days  (3744). 

c.  Form  of  ceremony. — No  provision. 

d.  Other  requirements  and  prohibitions. — Any  celebrant  who  knowingly 
solemnizes  a  miscegenetic  marriage  is  subject  to  a  fine  of  not  less  than  $500  or 
imprisonment  for  not  less  than  12  months,  or  both  (Vol.  II,  385). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — Within  15  days  the  marriage  certificate 
must  be  returned  by  the  celebrant  to  the  issuer  of  the  license  (3747). 

b.  Local  record. — The  certificate,  when  received,  must  be  recorded  (3747). 

c.  State  record. — No  provision. 

114 


LAWS  BY  STATES 

6.  INTER-STATE  RELATIONS 
No  provision. 

7.  CERTAIN  OTHER  PROHIBITIONS 

The  marriage  of  idiots  and  lunatics  (3743)  and  of  a  white  person  with  an  Indian, 
negro,  mulatto,  Mestizo,  or  half-breed  (3757)  is  forbidden  and  the  latter  marriages 
are  void. 

SOUTH  DAKOTA 

Authorities. — Compiled  laws  of  1913  (references  are  to  Civil  Code 
sections  unless  otherwise  specified);  Session  Laws  through  1917. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  recognized.  Consent  must  be  followed  by  solemnization 
or  by  mutual  assumption  of  marital  duties  (34).  See  also  Svendsen  v.  Svendsen, 
37  S.  D.  353,  158  N.  W.  410. 

2.  MARRIAGEABLE  AGE 

No  provision,  but  males  over  18  and  females  over  15  are  declared  capable  of 
marrying  (36). 

3.  THE  MARRUGE  LICENSE 

a.  Requirement. — Previous  to  any  marriage  a  license  must  be  obtained  (46). 

b.  Where  obtained. — From  the  clerk  of  the  circuit  court  of  the  county  where 
the  marriage  is  to  be  solemnized  (46). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18 
(10;  47).  It  must  be  given  in  writing  and  acknowledged  or  proved  to  be  genuine 
(50).    Penalty.— See  3h  below. 

Marriages  under  the  age  of  legal  consent,  when  contracted  without  parental 
consent,  may  be  annulled  on  action  by  the  parent  or  guardian  at  any  time  before 
the  non-aged  person  has  reached  such  age,  or  on  suit  of  such  minor  within  four 
years  after  that  time,  provided  the  marriage  has  not  been  subsequently  confirmed 
(62). 

e.  Form  of  license.— It  shows  the  names  and  residence  of  the  contracting 
parties  and  that  there  is  no  legal  impediment  (Laws,  1915,  p.  479). 

f.  Record  of  license. — Required  (49). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — Unless  the  clerk  is  acquainted  with 
the  age  and  condition  of  the  parties  he  must  take  the  oath  of  competent  and  dis- 
interested witnesses  on  the  subject  (48).  The  license  must  not  be  granted  where 
either  party  is  under  the  marriageable  age  nor  where  the  condition  of  either  party 
is  such  as  to  disqualify  him  from  making  any  other  civil  contract  (47);  nor  for  a 
miscegenetic  marriage  (Laws,  1913,  p.  406).  Penalties.-j-It  is  a  misdemeanor  to 
grant  a  license  for  a  miscegenetic  marriage  or  for  a  marriage  contrary  to  the  pro- 
visions of  the  law  (51;   Laws,  1913,  p.  405). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  justice  of  the  supreme  court;  judge  of  the  circuit  or 
county  court;  justice  of  the  peace;  mayor;  a  minister  of  the  gospel  or  priest  of  any 
denomination;  among  Indians  by  the  peace  makers,  their  agents  or  the  superin- 
tendent of  Indian  affairs  (45).  Marriage  may  also  be  contracted  by  declaration 
(53).    See  4c  below. 

b.  Presentation  of  license. — If  a  marriage  is  solemnized  without  a  license  the 

115 


AMERICAN  MARRIAGE  LAWS 

contracting  parties  and  all  persons  aiding  in  the  marriage  are  guilty  of  a  mis- 
demeanor (51). 

c.  Form  of  ceremony. — The  certificate  must  state  that  the  marriage  was  solem- 
nized in  the  presence  of  the  subscribing  witnesses — number  not  shown  (Laws, 
1915,  p.  480).  Persons  marrying  without  a  celebrant  must  jointly  make  a  written 
declaration  of  the  marriage  substantially  showing  their  names,  ages,  residence,  the 
fact  of  marriage,  the  time  of  marriage,  and  that  the  marriage  has  not  been  solem- 
nized. This  declaration  must  be  subscribed  by  the  parties  and  attested  by  at 
least  three  witnesses  and  acknowledged  and  recorded  in  like  manner  as  grants  of 
real  property  (53).    Indians  may  be  married  according  to  the  Indian  customs. 

d.  Other  requirements  and  prohibitions. — The  celebrant  must  ascertain  to  his 
satisfaction  the  identity  of  the  parties,  their  real  and  full  names,  places  of  resi- 
dence, that  they  are  of  sufficient  age  to  be  capable  of  contracting  marriage,  and 
the  name  and  residence  of  the  witness  or  two  witnesses  if  more  than  one  is  present 

(54).  . 

It  is  a  misdemeanor  to  solemnize  the  marriage  of  a  minor  under  the  age  of 
legal  consent,  or  of  an  idiot  or  insane  person;  or  to  solemnize  a  miscegenetic 
marriage  or  any  marriage  to  which  there  is  any  legal  impediment  (Penal  Code 
436;   Laws,  1913,  p.  406). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  must  return  the  marriage 
certificate  to  the  issuer  within  30  days  (Laws,  1915,  p.  481).  Declarations  of 
marriage  must  be  filed  with  the  clerk  of  the  circuit  court  where  the  parties  reside 
(58).  In  case  of  marriage  by  a  denomination  which  dispenses  with  the  services 
of  a  celebrant  the  parties  themselves  must  return  the  certificate  (59).  Penalty. — 
For  failure  to  make  the  required  return  the  celebrant,  or  where  there  is  no  cele- 
brant the  husband,  is  subject  to  a  fine  not  over  $50  (56-59;  Laws,  1915,  p.  481). 

b.  Local  record. — The  certificate  is  to  be  recorded  and  filed  by  the  clerk  (60; 
Laws,  1915,  p.  481). 

c.  State  record. — Each  county  clerk  is  required  to  send  to  the  superintendent 
of  vital  statistics,  each  month,  a  record  of  the  marriages  performed  in  his  county 
(Section  9905  of  the  Code  of  1919). 

6.  INTER-STATE  RELATIONS 

Marriages  valid  where  contracted  are  valid  in  South  Dakota  (44). 

7.  CERTAIN  OTHER  PROHIBITIONS 

A  miscegenetic  marriage  in  South  Dakota  means  the  marriage  of  a  white'person 
with  an  African,  Corean,  Malayan,  or  Mongolian.  Such  marriages  are  void  (Laws, 
1913,  p.  405). 

TENNESSEE 
Authorities. — Shannon's  Code  of  1917  (references  are  to  its  sec- 
tions);  Laws  through  1917. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  not  recognized.  The  provisions  for  license  and  a  certain 
form  of  solemnization  are  mandatory  (Smith  v.  Bank,  7  Cates  12;  Bashaw  v. 
State,  1  Yer.  177).  We  are  advised,  however,  by  a  recognized  authority  in  Tennes- 
see that  "it  would  seem  that  the  doctrine  of  estoppel  can  be  successfully  invoked 
in  many  cases,  thus  rendering  the  common  law  presumptions  of  marriage  effec- 
tive." 

1X6 


LAWS  BY  STATES 

2.  MARRUGEABLE  AGE 

No  statutory  provision.  The  common  law  ages  are  recognized — 14  for  males 
and  12  for  females  (Governor  v.  Rector,  10  Hum.  57). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — Before  being  joined  in  marriage  the  parties  shall  produce  a 
license  to  the  celebrant  (4191). 

b.  Where  obtained. — From  the  clerk  of  the  county  court  either  where  the 
female  resides  or  where  the  marriage  is  to  be  solemnized  (4191). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  any  one  under  16  years.  It  must  be  in 
writing  (4192a-l).  Penalties. — Issuing  a  license  without  the  required  consent  is 
a  misdemeanor  (4192a-2).  Fraudulently  signing  or  using  any  false  document 
purporting  to  be  parental  consent  is  a  misdemeanor  (4192a-3). 

e.  Form  of  license. — It  shows  the  name  of  the  celebrant  and  the  names  of  the 
parties  (4191). 

f.  Record  of  license. — Required  (5888). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — The  clerk  may  issue  the  license 
unless  he  knows  that  one  of  the  parties  is  incapable  of  marriage.  A  bond  in  the 
sum  of  $1,250  is  required,  payable  to  the  state,  with  sufficient  security,  condi- 
tioned that  there  is  no  cause  to  obstruct  the  marriage,  for  which  penalty  the  per- 
son aggrieved  may  sue  (4192).  Penalty. — For  knowingly  granting  a  license  to  an 
incapable  person,  a  forfeit  of  $500  for  the  use  of  the  person  suing  (4195).  This 
offense  shall  also  constitute  a  misdemeanor  (4197). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  justice  of  the  peace;  judge  or  chancellor;  governor; 
speaker  of  the  Senate;  speaker  of  the  House  of  Representatives;  a  regular  minister 
of  the  gospel  of  any  denomination;  a  Jewish  rabbi  (4189).  A  justice  of  the  peace 
cannot  solemnize  marriages  outside  of  his  own  county  (Bashaw  v.  State,  1  Yer. 
177). 

b.  Presentation  of  license. — Required  (4191). 

c.  Form  of  ceremony. — The  parties  must  respectively  declare  in  the  presence 
of  the  celebrant  that  they  accept  each  other  as  man  and  wife  (4190). 

d.  Other  requirements  and  prohibitions. — Any  celebrant  who  solemnizes  the 
marriage  of  "any  two  persons  not  capable  thereof"  shall  forfeit  $500  to  the  per- 
son suing  (4196).    Such  offense  shall  also  constitute  a  misdemeanor  (4197). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  shall  return  the  license, 
with  the  date  of  marriage  endorsed  thereon,  to  the  clerk  who  issued  it  within 
30  days  from  solemnization  (4193).  Penalty. — For  failure  to  do  so  he  is  subject 
to  a  fine  of  from  $10  to  $50  (4193). 

b.  Local  record. — The  license  when  endorsed  and  returned  as  per  5a,  is  to  be 
recorded  immediately  and  filed  (5888). 

c.  State  record. — No  provision. 

6.  INTER-STATE  RELATIONS 

No  statutory  provision;  the  courts  have  declared  that  the  manner  and  form 
of  marriages  solemnized  in  foreign  countries  shall  be  recognized  as  valid,  but  that 
this  rule  does  not  apply  to  the  capacity  of  the  parties  (State  v.  Bell,  7  Bax.  9). 

7.  CERTAIN  OTHER  PROHIBITIONS 

Marriages  between  white  persons  and  negroes  (4186). 
9  117 


AMERICAN  MARRIAGE  LAWS 

TEXAS 

Authorities. — Vernon's  Sayles'  Civil  Statutes  of  1914  (references 
are  to  its  sections  unless  otherwise  specified) ;  Civil  and  Criminal 
Supplement  of  1918;  White's  Penal  Code  of  1911. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  recognized  (Harlan  v.  Harlan,  125  S.W.  950;  Berger  v. 
Kirby,  153  S.W.  1130,  and  Grigsby  v.  Reib,  153  S.W.  1124). 

2.  MARRUGEABLE  AGE 

Males,  16;  females  14.  Marriage  by  persons  under  these  ages  is  forbidden 
(4609). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — Any  one  desirous  of  marrying  shall  apply  for  a  license  (4610). 

b.  Where  obtained. — From  the  clerk  of  any  county  court  (4610). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18. 
It  must  be  given  in  person  or  in  writing,  signed  and  acknowledged  before  an 
officer  authorized  to  take  acknowledgments.  In  cases  where  the  minor  has 
neither  parent  nor  guardian  the  county  judge  of  the  county  in  which  the  minor 
resides  may  give  consent.  If  the  issuer  is  doubtful  as  to  the  age  of  persons  repre- 
senting themselves  to  be  of  age,  he  must  require  a  certificate  under  oath  from  the 
parent  or  guardian  or  some  person  other  than  the  contracting  parties  (4611). 

e.  Form  of  license. — It  authorizes  the  marriage  (4610). 

f.  Record  of  license. — Required  (4612). 

g.  Life  of  license. — No  provision. 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  judge  of  a  district  or  county  court  or  justice  of  the 
peace;  a  regularly  licensed  or  ordained  minister  of  the  gospel  or  a  Jewish  rabbi 
(4608). 

b.  Presentation  of  license. — For  solemnizing  a  marriage  without  a  marriage 
license  the  celebrant  is  subject  to  a  fine  of  from  $50  to  $500  (White's  Penal  Code, 
p.  335a). 

c.  Form  of  ceremony. — No  provision. 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  must  endorse  the  fact 
of  solemnization  on  the  license  and  return  it  to  the  clerk  of  the  county  court 
within  60  days  (4612). 

b.  Local  record. — The  clerk  must  record  the  returned  license  endorsed  as  per 
5a  above  (4612). 

c.  State  record. — No  provision. 

6.  INTER-STATE  RELATIONS 
No  provision. 

7.  CERTAIN  OTHER  PROHIBITIONS 

Marriages  between  white  persons  and  negroes  or  their  descendants  are  unlaw- 
ful and  void  (4613). 

1x8 


LAWS  BY  STATES 

UTAH 

Authorities. — Compiled  Laws  of  1907  (references  are  to  its  sec- 
tions unless  otherwise  specified);  Laws  through  1917. 

1.  COMMON  LAW  MARRUGES 

Such  marriages  are  not  recognized.  A  marriage  is  void  unless  solemnized  by 
an  authorized  person.  But  want  of  authority  will  not  invalidate  a  marriage  if 
the  parties  believe  the  celebrant  to  be  authorized  (1184;    1187). 

2.  MARRIAGEABLE  AGE 

Males,  16;  females,  14.  Marriages  below  these  ages  are  prohibited  and  void 
(1184). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — No  marriage  shall  be  solemnized  without  a  license  (1189). 

b.  Where  obtained. — From  the  county  clerk  of  the  county  in  which  the  female 
resides;  but  if  she  is  of  full  age  or  a  widow  and  applies  for  it  in  person  or  in  writing 
it  may  be  obtained  from  the  clerk  of  any  county  (1189). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18,  not 
before  married.  Consent  must  be  personally  given  or  certified  in  writing  to  the 
clerk,  attested  by  two  or  more  subscribing  witnesses,  and  proved  by  the  oath  of 
one  of  them,  administered  by  any  authorized  person;  provided  that  if  such  oath 
is  administered  by  a  justice  of  the  peace  or  other  officer  having  no  seal  and  residing 
out  of  the  county  in  which  the  license  is  to  be  issued,  the  oath  and  consent  shall 
not  be  received  unless  the  signature  and  official  capacity  of  the  officer  shall  be 
certified  by  the  county  clerk  of  the  county  in  which  he  resides  and  attested  by  the 
seal  of  the  clerk  (1190).  Penalties. — See  3h  below,  last  sentence.  Any  person 
who  falsely  personates  or  forges  the  name  of  a  parent  or  guardian  is  subject  to 
imprisonment  for  not  over  three  years  (1195). 

e.  Form  of  license. — No  provision. 

f.  Record  of  license. — No  clear  provision  regarding  all  licenses.  For  licenses 
that  are  used  see  5b  below. 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — When  the  parties  are  unknown  to 
the  clerk  a  license  shall  not  be  issued  until  an  affidavit  is  made  before  him  by  the 
applicant  saying  that  there  is  no  lawful  reason  in  the  way  of  the  marriage  (1191). 
Penalties. — The  person  making  this  affidavit  or  any  subscribing  witness,  if  he 
swears  falsely  therein,  is  guilty  of  perjury  (1191). 

For  knowingly  issuing  a  license  for  a  prohibited  marriage  the  issuer  is  subject 
to  imprisonment  for  not  over  two  years,  or  a  fine  of  not  over  $1,000,  or  both,  and 
removal  from  office  (1197).  For  wilfully  issuing  a  license  "contrary  to  his  duty  as 
herein  prescribed"  he  is  subject  to  a  fine  of  not  over  $1,000  (1197). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  justice  of  the  peace;  judge  of  the  district  court  or  of  the 
supreme  court  or  mayor;  a  minister  of  the  gospel  or  priest  of  any  denomination  in 
regular  communion  with  any  religious  society  (1188).  Penalty. — For  solemnizing 
marriage  when  not  authorized  to  do  so  imprisonment  for  not  over  three  years 
(1195). 

b.  Presentation  of  license. — For  solemnizing  a  marriage  without  a  license  the 
celebrant  is  subject  to  imprisonment  for  from  one  to  12  months,  or  a  fine  of  not 
over  $1,000,  or  both  (1194).    See  also  4d  below. 

119 


AMERICAN  MARRIAGE  LAWS 

c.  Form  of  ceremony. — The  certificate  must  show  the  names  of  two  or  more 
witnesses  who  were  present  at  the  marriage  (1192). 

d.  Other  requirements  and  prohibitions. — For  knowingly  or  without  a  license 
solemnizing  a  prohibited  marriage  the  celebrant  is  subject  to  imprisonment  for 
not  over  three  years,  or  a  fine  of  not  over  $1,000,  or  both  (1196). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  shall  within  30  days 
return  to  the  issuer  a  certificate  of  the  marriage  (1192).  Penalty. — Failure  to  do 
so  is  a  misdemeanor  (1192). 

b.  Local  record. — The  license  and  certificate  must  be  filed  and  recorded  by 
the  clerk  (1193). 

c.  State  record. — No  provision. 

6.  INTER-STATE  RELATIONS 

Marriages  valid  where  solemnized  are  valid  in  Utah  (1186). 

7.  CERTAIN  OTHER  PROHIBITIONS 

Marriage  is  forbidden  with  an  idiot,  lunatic  or  person  afflicted  with  syphilis  or 
gonorrhoea  which  is  uncured,  or  with  a  person  subject  to  epileptic  fits — provided 
that  the  last  qualification  shall  not  apply  to  a  female  over  the  age  of  45  years — or 
between  a  white  person  and  a  negro  or  Mongolian.  Such  marriages  are  void 
(1184). 

VERMONT 

Authorities. — General  Laws  of  1917  (references  are  to  its  sec- 
tions) . 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  not  recognized  (Morrill  v.  Palmer,  68  Vt,  1). 

2.  MARRIAGEABLE  AGE 

No  statutory  provision.  The  common  law  ages  apply — 14  for  males  and  12  for 
females  (Fisher  v.  Bernard,  65  Vt.  663).  But  the  marriage  of  a  person  under 
16  years  of  age  may  be  annulled  on  action  by  a  parent  or  guardian  or  next  friend  of 
the  non-aged  minor  unless  ratified  after  reaching  the  "age  of  consent  "^  (3547-48). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — Before  solemnizing  a  marriage  the  celebrant  shall  require  a 
license  (3517). 

b.  Where  obtained. — From  the  town  clerk  of  the  town  where  the  groom  resides, 
or  if  he  is  not  a  resident  of  the  state,  of  the  town  where  the  bride  resides.  If  both 
are  non-residents,  of  the  town  where  the  marriage  is  solemnized  (3517);  from 
the  county  clerk  in  the  case  of  persons  residing  in  an  unorganized  town  or  gore 
(3772).  Penalty. — A  town  clerk  who  knowingly  issues  a  license  upon  the  applica- 
tion of  a  person  residing  in  any  other  town  in  the  state,  or  a  county  clerk  who 
knowingly  issues  a  license  upon  application  of  a  person  not  within  his  j  urisdiction 
is  subject  to  a  fine  of  from  $20  to  $50  (3792). 

c.  Advance  notice,  objections,  etc. — No  provision.     See  4d  below. 

d.  Parental  consent. — Required  for  minors — i,  e.,  males  under  21  and  females 
under  18.  It  must  be  given  in  writing.  Penalties. — For  violation  the  issuer  is 
subject  to  a  fine  of  not  more  than  $20.    Any  person  who  aids  in  procuring  a  mar- 

» We  are  advised  by  a  Vermont  lawyer  that  though  the  statute  is  ambiguous,  and  the  point 
has  not  been  covered  by  any  decision,  the  age  16  is  probably  referred  to. 

120 


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riage  license  by  false  personation  of  the  parents  or  guardian  is  subject  to  a  fine  of 
not  more  than  $500  (3795). 

e.  Form  of  license. — The  license  contains  the  sworn  declaration  of  marriage 
shown  in  3h  below,  the  clerk's  certification,  and  the  certificate  of  the  officer 
administering  the  oath  (3791).    The  date  of  issuance  must  be  shown. 

f.  Record  of  license. — Required  (3790). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — The  applicant  must  sign  and  make 
oath  to  a  declaration  of  intention  which  shows  the  names,  residence,  color,  place  of 
birth,  number  of  marriage,  whether  divorced,  father's  name  and  mother's  maiden 
name  for  each  party,  and  the  occupation  of  the  groom  (3790-91).  Penalties. — 
For  issuing  a  license  without  first  requiring  this  declaration  a  fine  of  from  $20  to 
$50  (3792).  Any  applicant  who  makes  a  material  misrepresentation  in  this 
declaration  is  guilty  of  perjury  (3793). 

The  clerk  is  forbidden  to  issue  a  license  to  a  resident  of  another  state  unless  he 
is  satisfied  that  the  marriage  would  not  be  prohibited  in  that  state.  Penalty. — 
For  issuing  a  license  to  non-residents  with  the  knowledge  that  they  would  be  pro- 
hibited from  marrying  by  the  laws  of  their  own  state,  a  fine  of  not  more  than 
$100  (3794). 

The  clerk  is  forbidden  to  issue  a  license  when  either  party  is  an  idiot,  non 
compos,  a  lunatic  or  distracted  person  or  under  guardianship,  without  the  written 
consent  of  the  guardian ;  or,  in  the  case  of  a  non  compos  person  not  under  guardian- 
ship or  of  a  town  pauper,  without  the  written  consent  of  the  selectman  or  overseer 
of  the  poor  of  the  town  where  such  person  resides  and  which  is  liable  for  his 
support  (3795). 

Any  clerk  who  dates  a  license  falsely  shall  be  fined  not  over  $20  (3517). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  justice  of  the  peace  in  his  county;  a  minister  of  the 
gospel  residing  in  the  state  and  authorized  to  solemnize  marriage  by  the  discipline 
of  his  denomination;  the  Society  of  Friends  in  the  manner  heretofore  used  by  them 
(3516).  Penalty. — For  undertaking  to  solemnize  marriage  when  not  authorized 
to  do  so,  imprisonment  for  not  more  than  six  months,  or  a  fine  of  from  $100  to 
$300  (3518). 

b.  Presentation  of  license. — Required  (3517).  Penalty. — For  solemnizing  the 
marriage  before  a  license  is  produced,  a  fine  of  not  less  than  $10  (3797). 

c.  Form  of  ceremony. — No  provision. 

d.  Other  requirements  and  prohibitions. — If  a  marriage  is  to  be  solemnized  in 
a  town  in  which  neither  party  resides,  it  shall  not  be  solemnized  until  five  days 
after  the  license  has  been  issued,  but  this  provision  shall  not  apply  to  persons 
enlisted  in  the  military  or  naval  service  of  the  United  States  (3517). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  shall  return  the  executed 
license  to  the  issuer  within  10  days  (3796).  Penalty. — For  failure  to  do  so  he  is 
subject  to  a  fine  of  not  less  than  $10  (3796). 

Any  male  resident  marrying  out  of  the  state  must  file  a  certificate  within 
60  days  with  the  clerk  of  the  town  where  he  resides  (3799).  Penalty. — For  failure 
to  do  so,  a  fine  of  not  less  than  $10  (3799). 

b.  Local  record. — The  clerk  shall  file  the  certificate  (3775-76).  On  the  first 
day  of  each  month  he  must  make  a  certified  copy  of  each  marriage  certificate 
filed  in  his  office,  either  party  to  which  was  a  resident  of  another  town,  and  trans- 
mit it  to  the  clerk  of  such  town,  who  shall  file  it  (3777). 

c.  State  record. — The  clerk  shall  transmit  monthly  to  the  secretary  of  the 
state  board  of  health  a  certified  copy  of  each  marriage  certificate  (3779).  Penalty. 
— For  failure  to  transmit,  a  fine  of  not  less  than  $20  (3781). 

121 


AMERICAN  MARRIAGE  LAWS 

6.  INTER-STATE  RELATIONS 

If  a  person  who  intends  to  remain  a  resident  of  Vermont  and  who  is  forbidden 
by  its  laws  to  marry,  contracts  marriage  elsewhere,  the  marriage  is  void  in  Ver- 
mont. If  a  person  who  intends  to  remain  a  resident  of  some  other  jurisdiction  and 
who  is  forbidden  to  marry  by  its  laws,  contracts  marriage  in  Vermont,  the  marriage 
is  void  (3514-15). 

7.  CERTAIN  OTHER  PROHIBITIONS 

The  marriage  is  forbidden  of  a  person  who  has  been  told  by  a  physician  that 
he  or  she  is  afflicted  with  gonorrhoea  or  syphilis,  without  assurance  or  certification 
from  a  legally  qualified  practitioner  of  medicine  or  surgery  that  he  or  she  is  free 
from  such  disease  (7035).  Penalty. — Imprisonment  not  more  than  two  years,  or 
a  fine  of  not  more  than  $500  (7035). 


VIRGINIA 

Authorities. — Pollard's  Code  of  1904  (references  are  to  its  sec- 
tions unless  otherwise  specified) ;  Supplement  of  1910;  Supplement 
of  1916;  Laws  through  1918. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  not  recognized.  No  attempted  marriage,  if  it  took  place 
in  the  state,  is  valid  unless  it  was  under  license  and  solemnized  according  to  the 
statutes.  There  is  an  exception  relating  to  ante-bellum  marriages  of  negroes 
(Offield  V.  Davis,  100  Va.  250). 

2.  MARRIAGEABLE  AGE 

Males,  14;  females,  12.  Such  marriages  are  void  without  legal  process  if 
the  parties  separated  during  such  non-age  and  do  not  cohabit  afterwards  (2254). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — Every  marriage  in  the  state  shall  be  under  license  (2222). 

b.  Where  obtained. — From  the  clerk  of  the  circuit  court  of  the  county  or  of 
the  corporation,  or  of  the  hustings  court  of  the  corporation  in  which  the  female 
usually  resides.  In  case  she  is  a  non-resident,  by  such  clerk  in  the  county  or 
corporation  in  which  the  marriage  is  to  be  solemnized;  or,  if  the  office  of  the  clerk 
be  vacant  or  if  from  any  cause  the  clerk  is  unable  to  issue  the  license,  by  the  judge 
of  the  circuit  court  or  mayor  of  the  corporation,  who  shall  report  to  the  clerk 
(2216). 

c.  Advance  notice,  objections,  etc. — No  provision  as  to  advance  notice. 
Persons  knowing  that  an  applicant  for  a  license  is  mentally  or  physically  disabled, 
as  shown  in  No.  7  below,  may  appear  before  the  clerk  and  produce  evidence  show- 
ing that  the  license  should  not  be  issued  (Laws,  1918,  p.  473).  The  parties  may 
appeal  to  the  court  at  their  own  cost  (Laws,  1918,  p.  474). 

d.  Parental  consent. — Required  for  any  one  under  21  years  of  age.  It  must  be 
given  personally  to  the  issuer  or  in  writing  subscribed  by  a  witness  who  shall 
make  oath  before  the  issuer  that  it  was  signed  and  acknowledged  in  his  presence; 
or  in  writing,  acknowledged  before  a  notary  public  or  other  authorized  person. 
If  there  is  no  parent  or  guardian  consent  may  be  given  by  the  court  (2218). 
Penalties. — If  any  one  swears  falsely  that  the  applicant  is  21  years  of  age  he 
shall  be  guilty  of  perjury  (3741).    See  also  3f  below  and  3h,  third  paragraph. 

e.  Form  of  license. — It  contains  a  statement  of  the  facts  shown  in  3h  below 
(Sup.  1910,  Sec.  2229). 

122 


LAWS  BY  STATES 

f.  Record  of  license. — Required  (2217).  Penalty. — For  failure  to  perform  any 
duty  required  of  him  under  the  chapter  on  marriage  the  issuer  shall  forfeit  $10  for 
each  offense  (2250). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — The  issuer  shall  ascertain  from  the 
party  obtaining  the  license  as  near  as  may  be  the  date  and  place  of  the  proposed 
marriage,  the  full  names  of  both  parties,  their  ages,  race,  residence  and  place  of 
birth,  whether  single,  widowed  or  divorced,  the  names  of  their  parents  and  the 
occupation  of  the  husband  (2229). 

No  one  shall  issue  a  license  to  any  applicants  either  of  whom  is  an  habitual 
criminal,  idiot,  imbecile,  hereditary  epileptic  or  insane  person  unless  the  woman 
is  over  45  years  of  age;  or  to  any  person  who  is  afflicted  with  a  contagious  venereal 
disease  (See  7  below).  The  issuer  may  accept  the  affidavit  of  the  male  applicant 
as  to  the  fact  that  he  is  free  from  any  contagious  venereal  disease  and  that  he 
believes  the  woman  to  be  free  therefrom.  If  he  is  not  satisfied  in  regard  to  the 
mental  defects  specified  he  is  authorized  to  follow  the  recommendation  of  the 
chairman  of  the  board  of  health  of  his  county  or  city  or  some  duly  licensed  prac- 
tising physician  (Laws,  1918,  p.  473). 

For  knowingly  issuing  a  marriage  license  contrary  to  law  the  issuer  shall  be 
fined  not  over  $500  and  imprisoned  not  over  one  year  (3784).  Any  person  who 
knowingly  violates  any  of  the  provisions  of  the  act  relating  to  the  marriage  of 
mental  and  physical  defectives  is  subject  to  a  fine  of  not  over  $100,  or  imprison- 
ment for  not  over  90  days,  or  both. 

If  residents  of  the  state  marry  elsewhere  a  certificate  verified  by  the  affidavit 
of  any  person  present  may  be  returned  to  the  clerk  of  the  court  of  the  county  or 
corporation  in  which  the  husband  resides,  or  if  he  is  a  non-resident  in  which  the 
wife  resides  (2231). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  minister  who  has  produced  his  credentials  and  given 
bond  in  some  county  or  corporation,  as  provided  by  law;  one  or  more  other  per- 
sons resident  in  any  county  whom  the  court  may  deem  it  expedient  to  appoint, 
such  persons  to  give  the  same  bond  as  is  required  of  a  minister  (2219-20);  any 
religious  society  having  no  ordained  minister,  according  to  its  custom  (2221). 
Penalty. — For  solemnizing  marriage  without  being  authorized  by  law  to  do  so 
the  offender  is  subject  to  imprisonment  for  not  over  one  year  and  a  fine  of  not 
over  $500  (3785). 

b.  Presentation  of  license. — For  solemnizing  a  marriage  without  a  license  the 
celebrant  is  subject  to  a  fine  of  not  over  $500  and  imprisonment  for  not  over  one 
year  (3785). 

c.  Form  of  ceremony. — No  provision. 

d.  Other  requirements  and  prohibitions. — Celebrants  are  forbidden  to  solem- 
nize the  marriage  of  persons  laboring  under  the  mental  or  physical  disabilities 
shown  in  7  below  (Laws,  1918,  p.  474).    Penalty. — See  3h  above,  third  paragraph. 

For  solemnizing  a  miscegenetic  marriage  the  celebrant  is  subject  to  a  forfeit  of 
$200,  of  which  the  informer  shall  have  one-half  (3789). 

Any  celebrant  who  exacts  a  greater  fee  than  the  $1  allowed  him  by  law  shall 
forfeit  to  the  party  aggrieved  $50  (2223). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  shall,  within  30  days, 
return  the  certificate  of  marriage  to  the  issuer.  Penalty. — For  failure  to  do  so  a 
fine  of  from  $10  to  $20  (Sup.  1910,  Sec.  2229).  The  condition  of  his  bond  shall 
also  be  broken  (2232).    For  making  a  false  certificate,  $100  to  $500  (3739). 

If  any  person  upon  whose  information  any  marriage  record  is  made  shall  give 
false  information  he  shall  be  fined  from  $50  to  $500  (3740). 

123 


AMERICAN  MARRIAGE  LAWS 

The  clerk  shall  annually  furnish  a  list  of  all  licenses  which  have  not  been  re- 
turned to  the  commonwealth  attorney  who  shall  have  such  persons  as  he  may  see 
proper  summoned  before  the  grand  jury  to  ascertain  the  names  of  the  celebrants 
failing  to  make  the  return  (Sup.  1910,  Sec.  2229). 

b.  Local  record. — The  clerk  shall  record  the  certificate  within  20  days,  and 
file  it  (2230).  Penalties. — For  failure  to  record  see  3f  above.  For  making  a  false 
record  a  fine  of  from  $100  to  $500  (3739). 

c.  State  record. — The  clerk  shall  transmit  annually  to  the  auditor  of  public 
accounts  a  copy  of  his  register  of  marriages  and  so  much  of  his  record  made  at 
the  time  of  issuing  the  license  as  is  not  contained  in  the  register,  distinguishing  the 
licenses  issued  on  which  the  certificate  has  not  been  returned  and  the  licenses  with 
such  certificates  (2239).    Penalty. — See  3f  above. 

6.  INTER-STATE  RELATIONS 

If  residents  forbidden  to  marry  by  the  laws  against  miscegenetic  and  incestu- 
ous marriages  intermarry  elsewhere  and  return  to  the  state  to  reside,  the  marriage 
is  governed  by  the  same  laws  as  if  it  had  been  solemnized  in  the  state  (2253). 

7.  CERTAIN  OTHER  PROHIBITIONS 

The  marriage  is  forbidden  of  an  habitual  criminal,  idiot,  imbecile,  hereditary 
epileptic  or  insane  person,  unless  the  woman  is  over  45  years  of  age,  and  of  any 
person  who  is  afflicted  with  a  contagious  venereal  disease.  The  term  "habitual 
criminal  "  means  any  person  who  has  been  convicted  at  least  three  times  of  a 
felonious  crime,  and  the  term  "hereditary  epileptic"  means  any  epileptic  either 
of  whose  parents  is  or  has  been  an  epileptic  (Laws,  1918,  p.  473). 

Marriages  between  whites  and  negroes  are  forbidden  and  void  (3788;  2252). 


WASfflNGTON 

Authorities. — Remington  and  Ballinger's  Codes  and  Statutes  of 
1915  (references  are  to  its  sections  unless  otherwise  specified); 
Laws  through  1917. 

1.  COMMON  LAW  MARRIAGES 

Such  marriages  are  not  recognized,  though  the  decisions  have  been  somewhat 
conflicting  (Meton  v.  State  Industrial  Insurance  Dept.,  177  Pacific,  696;  g.Potts 
v.  Potts,  142  Pacific,  448;  and  in  re  Smith's  Estate,  30  Pacific,  1059). 

2.  MARRIAGEABLE  AGE 

It  is  unlawful  to  issue  a  license  to  a  female  under  15  years  of  age  (7164).  There 
is  no  provision  as  to  males,  but  it  is  provided  that  marriage  may  be  annulled  if 
either  party  was  incapable,  through  want  of  legal  age,  on  suit  of  the  non-aged 
party  (7162).  Parents  cannot  maintain  an  action  for  annulment  (in  re  Hollopeter, 
51  Wash.  41). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — Before  any  persons  may  be  joined  in  marriage  they  must 
procure  a  license  (7163). 

b.  Where  obtained. — From  the  county  auditor  (7163).  There  is  no  residence 
territorial  restriction. 

Neither  party  is  required  to  appear  before  the  issuer.^ 

'  The  law  is  silent  on  this  point,  but  we  are  informed  by  a  correspondent  that  in  at  least  one 
county,  if  either  party  does  not  desire  to  be  present,  the  application  blank  is  furnished  by  the 
issuer  and  the  party  returns  it  after  filling  it  out  before  a  notary  public. 

124 


LAWS  BY  STATES 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18.  It 
must  be  in  writing  (7164).    Penalty. — See  3h  below, 

e.  Form  of  license. — No  provision. 

f.  Record  of  license. — Required  (7166). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — Each  applicant  must  file  an  affidavit 
with  the  issuer  showing  that  such  applicant  is  not  feeble-minded,  imbecile,  epilep- 
tic, insane,  a  common  drunkard  or  afflicted  with  pulmonary  tuberculosis  in  its 
advanced  stage.  The  affidavit  of  the  male  applicant  must  also  show  that  he  is 
not  afflicted  with  any  contagious  venereal  disease.  The  issuer  must  require 
affidavit  from  some  disinterested  party  showing  that  neither  party  is  an  habitual 
criminal  and  that  the  female  is  over  18  and  the  male  over  21,  unless  parental 
consent  is  given  (7164).  Penalties. — Any  one  swearing  falsely  to  any  statement  in 
the  affidavit  shall  be  deemed  guilty  of  perjury  (7164).  For  knowingly  violating 
the  provisions  as  to  issuance  of  license  the  issuer  is  subject  to  a  fine  of  not  over 
$1,000,  or  imprisonment  for  not  more  than  three  years,  or  both  (7165).  Any  per- 
son knowingly  violating  any  provision  of  Section  7164  shall  be  fined  not  more 
than  $1,000,  or  imprisoned  not  more  than  three  years,  or  both  (7165). 

4.  SOLEMNLZATION 

a.  The  celebrant. — A  judge  of  the  supreme  court  or  of  any  superior  court; 
a  justice  of  the  peace  within  his  county;  a  regularly  licensed  or  ordained  minister 
or  priest  of  any  church  or  religious  denomination  anywhere  within  this  state 
(7154) ;  any  religious  organization  in  accordance  with  its  established  forms  (7161). 
Penalty. — For  undertaking  to  solemnize  marriage  when  not  authorized  to  do  so  a 
fine  of  from  $100  to  $500  (7167). 

b.  Presentation  of  license. — For  solemnizing  marriage  contrary  to  the  pro- 
visions of  the  chapter  on  marriage  the  celebrant  is  subject  to  a  fine  of  from  $100 
to  $500  (7167). 

c.  Form  of  ceremony. — The  parties  must  assent  or  declare  in  the  presence  of 
the  celebrant  and  at  least  two  attending  witnesses  that  they  take  each  other  as 
husband  and  wife  (7156).    Penalty. — See  4b  above. 

d.  Other  requirements  and  prohibitions. — Celebrants  are  forbidden  to  solem- 
nize marriages  prohibited  on  account  of  the  mental  and  physical  disabilities  shown 
under  7  below  (7153).  Penalty. — For  violation,  a  fine  of  not  over  $1,000,  or 
imprisonment  for  not  over  three  years,  or  both.  The  solemnization  of  the  mar- 
riage of  a  person  under  the  age  of  legal  consent,  an  idiot,  insane  person,  habitual 
criminal  or  common  drunkard,  or  a  marriage  to  which  the  celebrant  knows 
any  legal  impediment  to  exist  is  a  gross  misdemeanor  (2671). 

For  solemnizing  marriage  contrary  to  the  provisions  of  the  chapter  on  marriage, 
a  fine  of  from  $100  to  $500  (7167). 

5.  THE  MARRUGE  RECORD 

a.  Certificates  and  their  distribution. — The  celebrant  shall  file  a  certificate 
within  three  months  with  the  judge  of  the  superior  court  (county  clerk)  of  the 
county  where  the  marriage  took  place  (7158).  Penalty. — For  violation,  a  fine  of 
from  $25  to  $300  (7160). 

b.  Local  record. — The  judge  of  the  superior  court  (county  clerk)  shall  file  and 
record  the  certificate  (7159). 

c.  State  record. — The  county  auditor  shall  report  all  marriage  statistics  to  the 
secretary  of  the  state  board  of  health  quarterly  (5422). 

6.  INTER-STATE  RELATIONS 
No  provision. 

125 


AMERICAN  MARRIAGE  LAWS 


WEST  VIRGINIA 
Authorities. — Hogg's  Code  of  1913  (references  are  to  its  sections 
unless  otherwise  specified) ;  Hogg's  Supplement  of  1918. 

1.  COMMON  LAW  MARRUGES 

Such  marriages  are  not  recognized  (Beverlin  v.  Beverlin,  29  W.  Va.  732). 

2.  MARRIAGEABLE  AGE 

Males,  18;  females,  16.    Marriages  under  these  ages  may  be  annulled  (3637). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — Every  marriage  shall  be  under  license  (3606). 

b.  Where  obtained. — From  the  clerk  of  the  county  court  of  the  county  in 
which  the  female  usually  resides  (3602). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  anyone  under  21  years  of  age.  It  must  be 
given  personally  to  the  clerk  or  in  writing  subscribed  by  a  witness  who  must  make 
oath  before  the  clerk  that  the  writing  was  signed  and  acknowledged  in  his  presence 
(3603).    Penalty.— See  3h  below. 

e.  Form  of  license. — Authorizes  the  marriage  of  the  persons  named  (3614). 

f.  Record  of  license. — Required  (3614). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — The  clerk  must  ascertain  from 
the  person  obtaining  the  license,  as  near  as  may  be,  the  full  names,  ages,  places 
of  birth  and  residences  of  both  parties  (3614). 

Penalty. — For  knowingly  issuing  a  license  contrary  to  the  law  the  clerk  is 
subject  to  imprisonment  for  not  more  than  one  year,  or  a  fine  of  not  over  $500,  or 
both  (5307). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  minister  of  the  gospel  who  has  produced  proof  of  his 
religious  authority  before  the  circuit  or  county  court  and  given  the  required  bond 
(3604).  Marriages  may  be  celebrated  between  persons  belonging  to  any  religious 
society  which  has  no  licensed  minister  in  the  manner  prescribed  by  such  society 
(3605).  Penalty. — For  solemnizing  marriage  when  not  authorized  to  do  so, 
imprisonment  for  not  more  than  one  year,  or  a  fine  of  not  more  than  $500,  or  both 
(5308). 

b.  Presentation  of  license. — Any  person  who  performs  a  ceremony  of  marriage 
"without  lawful  license"  is  subject  to  imprisonment  for  not  more  than  one 
year,  or  a  fine  of  not  more  than  $500,  or  both  (5308). 

c.  Form  of  ceremony. — The  license  authorizes  the  celebrant  to  solemnize 
according  to  the  rites  and  ceremony  of  his  religious  denomination  and  the  laws  of 
West  Virginia  (3614). 

d.  Other  requirements  and  prohibitions. — Any  person  who  knowingly  solem- 
nizes the  marriage  of  a  white  person  and  a  negro  is  subject  to  a  fine  of  not  over 
$200  (5312). 

5.  THE  MARRIAGE  RECORD 
a.  Certificates  and  their  distribution. — The  celebrant  shall  return  the  license 
to  the  issuer  within  60  days,  with  his  endorsement  of  the  fact  of  marriage  (3614). 
Penalties. — For  failure  to  do  so  the  condition  of  his  bond  is  deemed  broken.  He 
is  also  subject  to  a  penalty  (3617).i  For  making  a  false  certificate  a  forfeit  of 
from  $100  to  $500  (3633). 

>  Just  what  the  penalty  is  is  not  clear  in  the  codification  of  laws  consulted. 

126 


LAWS  BY  STATES 

Residents  of  the  state  marrying  elsewhere  may  return  a  certificate,  verified  by 
the  affidavit  of  any  person  present,  to  the  clerk  of  the  county  court  of  the  county 
in  which  the  husband  resides;  if  he  is  non-resident,  the  county  in  which  the  wife 
resides  (3616). 

b.  Local  record. — The  clerk  shall  file  and  preserve,  and  within  20  days  re- 
cord the  license  and  certificate  (3615).  The  assessor  of  the  county  shall  make 
inquiry  of  all  persons  assessed  by  him  and  report  any  not  shown  in  the  marriage 
indices,  to  be  furnished  him,  to  the  clerk  who  shall  enter  them  accordingly  (3624). 
Penalties. — For  failure  to  file  and  record  the  certificate,  the  clerk  shall  forfeit 
$10  (3632);  or  failure  to  furnish  a  copy  of  the  indices  to  the  county  assessor,  $50 
(3632),  or  knowingly  making  a  false  entry,  from  $100  to  $500  (3633).  For  failure 
by  the  assessor  to  perform  the  duties  required  of  him,  he  shall  forfeit  $10  (3630). 
Any  person  requested  by  the  assessor  to  give  such  information,  who  refuses  to  do 
so,  shall  be  fined  $10  (3624). 

c.  State  record. — The  clerk  shall  annually  transmit  to  the  registrar  of  vital 
statistics  a  copy  of  the  register  of  marriages  and  so  much  of  his  record  taken  at 
the  time  of  issuing  the  license  as  is  not  contained  in  the  register,  distinguishing  the 
licenses  on  which  certificates  have  not  been  returned  and  the  licenses  containing 
such  certificates  (3625).  Penalty. — For  failure  to  do  so,  a  forfeit  of  from  $10  to 
$100  (3625). 

d.  Penalties  not  shown  above. — If  any  person  upon  whose  information  any 
record  may  lawfully  be  made  in  the  chapter  on  marriage,  shall  knowingly  give 
any  false  information  to  be  used  for  the  purpose  of  making  such  record  he  shall 
forfeit  from  $50  to  $300  for  each  offense  (3634). 

6.  INTER-STATE  RELATIONS 

If  any  resident  of  the  state  in  order  to  evade  the  law  relating  to  incestuous, 
miscegenetic  and  bigamous  marriages,  or  the  marriage  of  an  insane  or  physically 
incapable  person  or  person  under  the  age  of  consent,  shall  marry  elsewhere,  con- 
tinuing to  reside  in  the  state,  the  marriage  shall  be  governed  by  the  same  law  as  if 
it  had  been  solemnized  in  the  state  (3638;  3636). 

7.  CERTAIN  OTHER  PROHIBITIONS 

A  marriage  between  a  white  person  and  a  negro,  or  of  an  insane  person,  is 
void  from  the  time  its  nullity  is  declared  by  decree  of  the  court  (3636). 


WISCONSIN 

Authorities. — ^Statutes  of  1917  (references  are  to  its  sections); 
Special  Session  1918. 

1.  COMMON  LAW  MARRUGES 

Such  marriages  are  not  recognized.  "Marriage  may  be  validly  contracted  in 
this  state  only  after  a  license  has  been  issued  therefor,  in  the  manner  following." 
Here  follow  regulations  as  to  form  of  solemnization  (2339n-l). 

All  marriages  contracted  in  violation  of  these  provisions  are  declared  void 
except  in  case  of  certain  designated  irregularities  (2339n-21-23).  Such  void 
marriages  may  be  validated  by  compliance  with  the  law  (2339n-l).  Where  a 
marriage  has  been  celebrated  as  provided  and  the  parties  have  immediately  as- 
sumed the  habit  and  repute  of  husband  and  wife  and  continue  the  same  uninter- 
ruptedly for  one  year,  or  until  the  death  of  either,  it  shall  be  deemed  that  a  license 
has  been  issued  (2339n-23). 

127 


AMERICAN  MARRIAGE  LAWS 

2.  MARRUGEABLE  AGE 

Males,  18;  females,  15  (2329).  Such  marriages  are  voidable  on  suit  by  the 
non-aged  party  unless  confirmed  after  arriving  at  the  prescribed  age  (2351). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — See  1  above  (2339n-l). 

b.  Where  obtained. — From  the  county  clerk  of  the  county  in  which  one  of  the 
parties  resides;  if  both  are  non-residents,  in  the  county  where  the  marriage  is 
to  take  place  (2339n-2). 

Neither  party  is  required  to  appear  before  the  issuer.  The  parties  may  make 
the  required  affidavits  before  an  officer  authorized  to  administer  oaths,  who  shall 
have  them  identified,  and  forward  the  statement  to  the  proper  clerk  (2339n-4). 

c.  Advance  notice,  objections,  etc. — Application  must  be  made  at  least  five 
days  before  the  license  is  issued,  though  exceptions  may  be  made  in  the  case  of 
dangerous  illness  or  pregnancy  or  upon  request  of  the  female's  parents,  upon  order 
of  the  court.  The  person  applying  for  such  order  must  have  been  a  resident  of  the 
state  at  least  30  days  (2339n-3).  A  notice  of  the  proposed  marriage  must  be  posted 
in  the  clerk's  office  (2339n-6). 

Any  parent,  grandparent,  brother,  sister  or  guardian  of  either  applicant  may 
file  objections  with  the  court;  if  upon  a  hearing,  the  court  shall  find  that  the 
statements  in  the  application  are  wilfully  false  or  insufficient,  or  that  either  party 
is  not  competent  to  marry,  it  shall  issue  an  order  refusing  the  license.  If,  however, 
such  falseness  or  insufficiency  is  due  merely  to  inadvertence,  the  court  shall  permit 
the  parties  to  amend  the  application.  In  case  the  required  information  cannot 
be  obtained,  the  court  may  order  the  license  to  issue  notwithstanding  such  insuffi- 
ciency. The  costs  of  the  proceedings  shall  rest  in  the  discretion  of  the  court 
(2339n-6). 

d.  Parental  consent. — Required  for  males  under  21  and  females  under  18. 
It  must  be  given  before  the  clerk  under  oath,  or  certified  under  the  hand  of  the 
parent  properly  verified  by  affidavit.  If  there  is  no  parent  or  guardian,  consent 
may  be  given  by  the  judge  of  the  court  having  jurisdiction  in  the  county  where  the 
application  is  pending  (2339n-5).  Penalties. — For  issuing  without  the  required 
consent,  see  general  penalty  under  3h  below.  For  false  testimony  by  any  person 
as  to  the  age  of  a  minor,  or  false  impersonation  of  a  parent  or  guardian,  a  fine  of 
from  $100  to  $500,  or  imprisonment  for  not  over  one  year,  or  both  (2339n-7). 

e.  Form  of  license. — The  license  is  directed  to  any  person  legally  authorized 
to  solemnize  marriage.  It  shows  the  names,  ages  and  condition  of  the  parties — 
whether  single,  widowed  or  divorced — and  the  parental  consent  if  required.  It 
states  that  the  marriage  may  be  performed  within  30  days  from  the  date  of 
the  license  and  that  the  latter  shall  not  be  deemed  to  dispense  with  any  legal  dis- 
ability. If  the  marriage  is  to  be  solemnized  by  the  parties  without  a  celebrant, 
the  license  is  directed  to  the  parties  and  authorizes  them  to  be  joined  in  marriage 
in  accordance  with  the  customs  of  any  religious  denomination  (2339n-ll). 

f.  Record  of  license. — Required.  The  docket  is  open  to  public  inspection 
(2339n-9).  Penalty. — For  failure  to  comply  with  these  provisions,  the  issuer  is 
subject  to  a  fine  of  not  over  $50;  for  preventing  any  person  from  making  a  copy 
of  the  entries,  a  similar  penalty  (2339n-19). 

g.  Life  of  license. — Thirty  days  (2339n-10).  For  solemnizing  a  marriage  more 
than  30  days  from  the  date  of  license  the  celebrant,  or  where  there  is  no  cele- 
brant, the  parties,  are  subject  to  a  fine  of  from  $100  to  $500,  or  imprisonment  for 
not  more  than  one  year,  or  both  (2339n-15-16). 

h.  Other  requirements  and  prohibitions. — The  contracting  parties  must  be 
identified  to  the  satisfaction  of  the  clerk  (2339n-4),  who  shall  require  of  them, 
either  separately  or  together,  a  statement  under  oath  relative  to  the  legality  of  the 
contemplated  marriage;  the  date  of  the  same;  the  names,  relationship,  if  any, 
age,  nationality,  color,  residence  and  occupation  of  the  parties;  the  names  of  the 

128 


LAWS  BY  STATES 

parents  or  guardians  of  such  as  are  under  the  age  of  legal  majority;  any  prior 
marriage  or  marriages  and  the  manner  of  dissolution  thereof;  and  if  there  be  no 
legal  objection,  the  clerk  may  issue  the  license  (2339n-4). 

Within  15  days  prior  to  the  application  all  male  applicants  must  be  examined 
for  venereal  disease  by  a  physician  licensed  to  practise  in  Wisconsin  or  in  the 
state  in  which  the  applicant  resides,  and  must  file  with  the  clerk  the  physician's 
certificate  showing  that  the  applicant  is  free  from  such  disease  (2339m).  Any 
person  who  has  been  afflicted  with  gonorrhoea  or  syphilis  must  file  a  certificate 
from  a  designated  state  laboratory  showing  that  such  person  has  been  examined 
and  is  not  in  a  communicable  stage  of  the  disease  (2339n).  There  follow  directions 
as  to  laboratories,  physicians'  fees,  etc.  Penalties. — Any  clerk  who  wilfully  issues 
a  license  to  any  person  who  has  failed  to  file  the  required  certificate  of  health,  any 
physician  who  knowingly  makes  a  false  statement  in  such  certificate,  or  any 
person  who  shall  disclose  any  matter  relating  to  the  examination  except  as  required 
by  law,  is  liable  to  a  fine  of  not  over  $100,  or  imprisonment  not  over  six  months 
(2339m).  Any  person  who  obtains  a  license  contrary  to  the  provisions  of  the 
venereal  disease  act,  is  punishable  by  a  fine  of  not  less  than  $100,  or  imprisonment 
for  not  less  than  three  months,  or  both  (2339n). 

It  is  further  provided  that  any  person  who  in  any  affidavit  or  statement  nec- 
essary to  the  obtaining  of  a  license  wilfully  and  falsely  swears,  or  procures  another 
to  swear  false  in  regard  to  any  matter  of  fact  relating  to  the  competency  of  either 
or  both  parties,  is  liable  to  a  fine  of  from  $100  to  $500,  or  imprisonment  for  not 
more  than  one  year,  or  both  (2339n-7). 

i.  Penalties  not  shown  above. — For  knowingly  issuing  a  marriage  license  con- 
trary to  or  in  violation  of  the  provisions  covering  the  whole  matter  of  marriage 
licenses,  a  fine  of  from  $100  to  $500,  or  imprisonment  for  not  more  than  one  year, 
or  both  (2339n-8). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  justice  of  the  peace,  police  justice,  municipal  judge,  or 
court  commissioner  in  the  county  in  which  he  is  elected  or  appointed ;  and  through- 
out the  state  by  any  judge  of  any  court  of  record;  an  ordained  minister  in  regular 
communion  with  any  religious  society  and  who  continues  to  be  such  minister  or 
priest ;  any  licentiate  of  a  denominational  body  or  an  appointee  of  any  bishop  while 
serving  as  the  regular  minister  or  priest  of  any  church  or  denomination  to  which 
he  belongs,  provided  he  is  not  restrained  from  solemnizing  marriage  by  the  dis- 
cipline of  his  denomination.  Ministers,  priests,  licentiates  or  appointees  must  file 
copies  of  their  credentials  with  the  designated  official  and  receive  a  certificate 
from  him  before  they  are  authorized  to  solemnize  marriage  (2331-32).  Certain 
religious  societies  may  solemnize  marriage  according  to  their  customs  (2339n-l). 
Penalty. — For  attempting  to  solemnize  marriage  when  not  authorized  to  do  so, 
$100  to  $1,000,  or  imprisonment  not  more  than  one  year,  or  both  (2339n-17). 
Any  person  who  aids  in  a  fictitious  marriage  is  subject  to  the  same  penalty. 

b.  Presentation  of  license. — For  solemnizing  without  requiring  a  license  the 
celebrant  is  subject  to  a  fine  of  from  $100  to  $500,  or  imprisonment  for  not  over 
one  year,  or  both  (2339n-15). 

c.  Form  of  ceremony. — The  parties  must  declare  in  the  presence  of  two 
competent  witnesses  other  than  the  celebrant  that  they  take  each  other  as  hus- 
band and  wife.  The  rule  as  to  witnesses  and  declaration  also  holds  for  marriages 
in  certain  religious  societies  with  special  customs  (2339n-l).  Penalty. — For 
solemnizing  contrary  to  these  provisions,  the  celebrant  is  punishable  by  a  fine  of 
from  $100  to  $500,  or  imprisonment  for  not  more  than  one  year,  or  both  (2339n- 
16). 

d.  Other  requirements  and  prohibitions. — The  celebrant  must  satisfy  himself 
that  the  parties  presenting  themselves  to  be  married  by  him  are  the  parties 
named  in  the  license,  and  if  he  knows  of  any  legal  impediment  to  the  marriage,  he 
must  refuse  to  perform  the  ceremony  (2339n-10).    Penalties. — For  solemnizing, 

129 


AMERICAN  MARRIAGE  LAWS 

knowing  of  any  legal  impediment,  or  unless  parental  consent  when  required  is 
stated  in  the  license,  or  in  the  case  of  non-residents  in  a  county  in  which  the 
license  has  not  been  issued,  the  celebrant  is  liable  to  a  fine  of  from  $100  to  $500, 
or  imprisonment  for  not  more  than  one  year,  or  both.  In  case  of  marriages 
solemnized  without  the  presence  of  a  celebrant,  the  contracting  parties  are  subject 
to  a  similar  punishment  for  solemnizing  their  marriage  in  a  county  other  than  as 
prescribed  (2339n-15-16). 

Any  person  who  aids  in  any  way  in  the  solemnization  of  a  fictitious  marriage 
is  punishable  by  a  fine  of  from  $100  to  $1,000,  or  imprisonment  for  not  over  one 
year,  or  both  (2339n-17). 

Any  celebrant  who  solemnizes  the  marriage  of  an  insane,  imbecile,  feeble- 
minded or  epileptic  person ;  or  any  one  who  assists  in  procuring  such  a  marriage, 
is  punishable  by  a  fine  of  from  $50  to  $150,  or  imprisonment  for  not  over  six 
months,  or  both  (4593m-n). 

5.  THE  MARRIAGE  RECORD 

a.  Certificates  and  their  distribution. — A  certificate  must  be  filed  by  the 
celebrant  (or  where  there  is  no  celebrant,  by  the  contracting  parties)  with  the 
local  registrar  of  vital  statistics  of  the  city  or  town  in  which  the  marriage  took 
place,  within  three  days  after  solemnization.  The  license  itself  is  retained  by  the 
celebrant,  as  evidence  of  authority  to  perform  the  ceremony  (2339n-14).  Penalty. 
— For  failure  to  do  so,  a  fine  of  not  over  $200  (2339n-18) ;  for  falsely  certifying  the 
date  of  marriage,  a  fine  of  from  $100  to  $500,  or  imprisonment  not  over  one  year, 
or  both  (2339n-15).  The  certificate,  when  issued  with  the  license,  contains  the 
data  required  to  be  ascertained  by  the  issuer. 

When  persons  living  in  the  state  go  out  of  it  to  be  married  they  must  obtain 
from  the  clerk  of  the  county  in  which  either  of  them  resided  prior  to  their  marriage 
a  blank  certificate  which  they  shall  cause  to  be  properly  filled  out  and  filed,  with 
the  local  registrar  of  vital  statistics  of  the  city  or  town  in  which  they  reside,  within 
10  days  after  their  return  (1022-52). 

b.  Local  record. — The  local  registrar,  or  the  health  officer  in  cities  and  the 
clerk  of  each  township  and  incorporated  village,  shall  keep  an  accurate  copy  of 
each  marriage  certificate  received  by  him  upon  a  form  identical  with  the  original 
certificate,  to  be  filed  and  permanently  preserved  in  his  office  (1022-25).  He  shall 
each  month  transmit  a  copy  of  each  certificate  received  by  him  to  the  registrar  of 
deeds  of  his  county  (1022-60)  who  shall  file  and  preserve  it  (1022-61).  Penalty. — 
Any  person  who  fails  to  file  the  required  certificate  with  the  registrar  of  deeds  or 
who  makes  a  false  certificate,  and  any  registrar  of  deeds  who  fails  to  record  it  or 
who  wilfully  makes  a  false  record,  is  subject  to  imprisonment  not  over  six  months, 
or  a  fine  of  not  over  $100  (4556). 

c.  State  record. — The  local  registrar  shall  transmit  monthly  to  the  state  regis- 
trar all  original  certificates  received  by  him,  or  the  duplicates  in  cities  of  the  first 
class  (1022-26).  The  state  registrar  may  call  for  the  records  of  the  issuer  in  order 
to  check  up  the  returns  (1022-51)  and  if  any  such  are  incomplete  he  shall  require 
such  further  information  as  may  be  necessary  (1022-8).  He  shall  certify  any 
corrections  to  the  registrar  of  deeds  (1022-57). 

6.  INTER-STATE  RELATIONS 

If  a  person  who  intends  to  remain  a  resident  of  Wisconsin  and  who  is  forbidden 
by  its  laws  to  marry,  contracts  marriage  elsewhere,  the  marriage  is  void  in  Wis- 
consin. If  a  person  who  intends  to  remain  a  resident  of  some  other  jurisdiction 
and  who  is  forbidden  to  marry  by  its  laws,  contracts  marriage  in  Wisconsin,  the 
marriage  is  void  (2330-m). 


130 


LAWS  BY  STATES 


WYOMING 

Authorities. — Compiled  Statutes  of  1910  (references  are  to  its 
sections);  Laws  through  1917. 

1.  COMMON  LAW  MARRIAGES 

The  status  of  such  marriages  is  not  clear.  It  has  been  held,  however,  that  a 
ceremonial  marriage  without  a  license  is  valid  (Connors  v.  Connors,  5  Wyo.  433), 
and  that  conduct,  etc.,  as  man  and  wife  creates  a  presumption  of  marriage  (Wied- 
enhoft  V.  Primm,  16  Wyo.  340). 

2.  MARRIAGEABLE  AGE 

Males,  18;  females,  16  (3892).  A  marriage  under  this  age  may  be  annulled 
on  action  of  the  parent  or  guardian  or  the  non-aged  party,  provided  it  has  not 
been  ratified  after  reaching  such  age  (2918-20). 

3.  THE  MARRIAGE  LICENSE 

a.  Requirement. — Previous  to  the  solemnization  of  any  marriage  in  the  state 
a  license  for  the  purpose  must  be  obtained  (3894). 

b.  Where  obtained. — From  the  county  clerk  of  the  county  in  which  the 
marriage  is  solemnized  (3894). 

c.  Advance  notice,  objections,  etc. — No  provision. 

d.  Parental  consent. — Required  for  all  under  21.  It  must  be  given  personally 
or  in  writing,  proved  by  the  testimony  of  at  least  one  competent  witness  (3895). 

e.  Form  of  license. — No  provision. 

f.  Record  of  license. — Required  (3896). 

g.  Life  of  license. — No  provision. 

h.  Other  requirements  and  prohibitions. — Upon  the  testimony  of  some  com- 
petent witness  and  of  the  applicant  the  issuer  shall  ascertain  the  full  names  and 
residences  of  the  parties;  that  they  are  of  sufficient  age  to  be  capable  in  law  of 
contracting  marriage;  and  that  there  is  no  legal  impediment  according  to  the 
laws  of  the  state  of  their  residence  (3896),  and  shall  refuse  to  grant  the  license  if 
any  impediments  appear  (3897). 

4.  SOLEMNIZATION 

a.  The  celebrant. — A  judge;  a  court  commissioner  of  any  district  court;  or  a 
justice  of  the  peace;  an  ordained  or  licensed  minister  of  the  gospel  (3898);  reli- 
gious societies  according  to  their  customs  (3905).  Penalty. — For  undertaking  to 
solemnize  marriage  when  not  legally  authorized  to  do  so  a  fine  of  not  over  $500,  or 
imprisonment  for  not  over  one  year  (3903). 

b.  Presentation  of  license. — No  provision. 

c.  Form  of  ceremony. — The  parties  shall  solemnly  declare  in  the  presence  of 
the  celebrant  and  at  least  two  witnesses  that  they  take  each  other  as  husband  and 
wife  (3899).  Religious  societies  may  solemnize  the  marriage  of  such  persons  as 
are  members  of  the  society  according  to  their  customs  (3905). 

d.  Other  requirements  and  prohibitions. — Marriages  that  are  declared  void  by 
the  divorce  law — i.  e.,  bigamous  and  incestuous  marriages  and  the  marriage  of  an 
insane  person  or  idiot — shall  in  no  case  be  solemnized  (3893).  For  solemnizing  a 
marriage  knowing  of  any  legal  impediment  the  celebrant  is  subject  to  a  fine  of  not 
over  $500,  or  imprisonment  for  not  over  one  year  (3903). 

5.  THE  MARRIAGE  RECORD 
a.  Certificates  and  their  distribution. — The  celebrant  shall  file  a  certificate 
with  the  issuer  of  the  license  within  three  months  (3901).    Penalty. — For  failure 

131 


AMERICAN  MARRIAGE  LAWS 

to  do  so  or  for  wilfully  making  a  false  certificate  a  fine  of  not  over  $500,  or  im- 
prisonment for  not  more  than  one  year  (3903). 

b.  Local  record. — The  county  clerk  who  issued  the  license  shall  record  the 
certificate  within  one  month  (3902).  Penalty. — For  failure  to  record  it  a  fine  of 
not  over  $500,  or  imprisonment  for  not  over  one  year  (3903). 

c.  State  record. — No  provision. 

6.  INTER-STATE  RELATIONS 

Marriages  valid  where  contracted  are  valid  in  Wyoming  (3907). 


132 


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